gila slp in foreign law firms sc case

IN THE SUPREME COURT OF INDIA

[SCR, Order XXI Rule 3(1) (a)]

CIVIL APPELLATE JURISDICTION

SPEC!. '_ LEAVE PETITION (CIVIL) NO. OF 2015

(Arising fro impugned final judgment and common order dated 16December • J09 passed by the Hon'ble High Court of Judicature atBombay in V rit Petition (C) No. 1526 of 1995).

IN THE MATTER OF:

Global Indian Lawyers ... PETITIONERVERSUS

Bar Council of India & Ors ... RESPONDENTS

PAPER BOOK

I.A. No. of 2015 :WITH

Application for permission to file SpecialLeave Petition

I.A. No. of 2015 :AND WITHApplication exemption from filing certifieocopy of the impugned judgment.

I.A. No. of 2015 :AND WITHApplication for condonation of delay infiling Special Leave Petition.

(PLEASE SEE INDEX INSIDE)

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

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INDEX

s. No. Particulars Pages

1. Office Report on Limitation - A-

2. Listing Proforma fjl - A)...

3. Synopsis and List of dates Jb,. p

4. Copy of the impugned judgmentand final order dated ~6 December i- ~42009 passed by the Hon'ble HighCourt of Judicature at Bpombayin Writ Petition (CO No. 1526 of 1995

5. Special Leave Petition with Affidavit 4 c - ';:f- t:l

6. Appendix =t1· :f~Advocates Act ,1961

7. Annexure P-1True Copy of the order dated~l·02.2012- ':16 -1~1passed by the Hon'ble High Court of Judicatureat Madras rendered in Writ PetitionNo.5614/2010

8. Annexure P-2True Copy of the order 04.07.2012 llJo-141passed by~Hon'ble Court renderedin SLP (C) 17150-54 of 2012

9. Application for Permission to file 14~- tlJtSpecial Leave Petition

10. Application for exemption from filing 141-14~certified copy of the impugned judgment and order.

11. Application for condonation of delay in 149 ..1.r~filing Special Leave Petition

12. Letter -In-

IN THE SUPREME COURT OF INDIA[ORDER XXI RULE 3 (1) (A)]

CIVIL APPELLATE JURISDICTIONSPECIAL LEAVE PETITION

(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA)

SPECIAL LEAVE PETITION (CIVIL) No. of 2016

IN THE MATTEROF:liUobcd~J~~ ~wyeY'~ .... PETITIONER

VERSUS

~~ {P.An~- 6f -'l~ ~'(/( .... 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 l2_'16

days in filing the same against the order dated 16-/:{- '],oJ'!andpetition for condonation of lEU. days has been filed.

3. There is a delay of days in refilling the petition and

petition for condonation of __ ....,...days in refilling has been

filed.

BRANCH OFFICER

Dated: l"i.43.2015'

/

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•

PROFORMA FOR FIRST LISTING.i

SECTION :>?., rTile case pertains to (Please tick/check the correct box):

·0 Central Act: (Title) N • 1:1 ... ... _N.A-·',0 Section: -----

,0 Central Rule: (Title) 'N ·Ao Rule No(s) : .. N. eo State Act : (Title) ._-+N_,._.~A__.____ ~_

o Section: N I-d._..'.•

o State Rule: (Title) .-.-- _ _N.___, A_...._ _

o Rule No(s) :-----N_:A

o Impugned Interim Order: (Date) __ ~......,A•• ..0 Impugned Final Order/Decree: (Date) Jt~_lb:l0 0 Cf

o High Court: (Name) !-tI1l-\'bk t:u44 f.I!!lrtot-Jo.U.i(&rI<J~ aX ~ ..~y.. .. ).{tn\'bk IYW·· Jt~t"Le. ~hl-e~...J~t~ ,.:1)o Names 0tJudges: .ila.,J'LAo t>:I)::. .!tli'(t. ~~. .1:' i>, b.< ""'diu!~ ..:l)

o TribunaliA~Jth~rity :'(NaI~e}__,_' N~_ft_. __. .__...__. ...... ._.. _. . ',' . ".

, 1:' Nature-of matter: '~vil o Criminal

2. (a)Petitioner/appeJ1antNo.l: c4l~&Q.,{ 1-ncL'tat:.} Lerwy-('~· '(b) e-mail 10: .1\) •A__ ...._(c) Mobile phone number: vY~ ._

',3. (a) Respondent No. 1: llJ,ClY' C.f)un.t..4 CfJ Jl\dUa .1J-QY'~~(b) e-mail ID: tV Id . . _(c) Mobile phone number: -_._d_ .'8:__..._

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. 5:. Not to be listed before: tJ · A6. Similar/Pending matter: ,SLp e.G) ~ t lS'~:11S-~ 12-

.' 7. Criminal Matters:(a) Whether accused/convict has surrendered: 0 Yes C2(No

(h) FIR No. _,~--' A"'-J--- Date:

, . '(c) Police Station: -4"'~_,.....e_~---------(d) Sentence Awarded: ~ __ .__ ,_f\!__;__-• .!..-A...L..-

IV ' f](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:

9. Tax Matters: State the tax effect: tY ·810. Special Category (first petitioner/appellant only): IV' ftOSenior citizen> 65 years DSC/ST 0Woman/child 0 Disabled 0 Legal

Aid case 0 In custody

11. Vehicle Number (in case of Motor Accident Claim matters): N' ft.,' 12~.Decided,cases with citation: --- ..----tJ_-~A- ..------------."-.--

Date: J·6 or oj, ~~l s- AORfor petitioner(s)/appellant(s)

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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

-- _. -----------

cBombay 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 lawfirms 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 AdvocatesAct

(as has been held by the High Court of Bombay), but the individual

lawyers of that firm seeking to practice Indian law who are mandated to

enroll under the provisions of the AdvocatesAct.

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 Rulesfor registration of lawyers based

upon the demarcation of the practice of the profession of law into

the practice of Indian law and the practice of foreign law.

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

~

ffb

"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 international exposure,

promoting and . facilitating Indian law

students and Indian legal professionals to

pursue foreign degree and courses, to

promote and 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 support the entry of

international law firms 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,

1995

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.

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 afore

mentioned 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 RespondentNo. 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 Act, 1961? In particular, the

question was, whether practicing 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 dated 12/02/2006

was re-affirmed and 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

Hof 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 non

litigious matters. Section 29 of the

1973Act relates to granting permission

for business purposes and not for

professional purposes and, therefore,

the RBI could not have granted

permission to these foreign law firms

under Section 29 of the 1973Act.

ii) Secondly, the Hon'ble High Court was

pleased to hold that these foreign law

firms could carryon their liaison

activities in India only on being

enrolled as advocates under 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 non

litigious matters in India. The foreign

law firms who were party before the

Hon'ble Bench were bound to follow

---- - _-

Ithe 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 1961Act.

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 profession of law

irrespective of the practice 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

Respondentsto take appropriate action

against the Respondents9 to 40 therein

or any other foreign law firms or foreign

Jlawyers 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

professionof 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 AdvocatesAct,

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 res

integra 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 Firmswere arrayed

as party respondents to the afore

mentioned writ petition and upon

entering appearance and filing their

counter-affidavits, the stand taken by

the said Respondents-Foreign Law

Firmswas 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.

Liii) 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 of the regulating

authority in a 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 law firms

lawyers cannot

and foreign

practice the

profession of law in India either on

the litigation or non-litigation side,

unless they fulfill the requirement of

the AdvocatesAct, 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

NIndia 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.OCompaniesproviding wide

range of customized and integrated

services and functions to its

customers like word-processing.

Secretarial support, transcription

services, proof 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 provisionsof

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

oMadras 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(J1rendered 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

,,,--

J~ /03/2015

pAct, 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

Resolutiondated :201'1, the Petitioner Society

resolved to prefer a special leave petition to

urge certain additional issues with respect to .

the issueof 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.

Hence, this Special LeavePetition.

Judgment - W.P.1S26/199S

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.1526 OF 1995

LAWYERSCOLLECTIVE, a Society registeredunder the Societies RegistrationAct and under

the Bombay Public TrustsAct, having its officeat 4th Floor,Jalaram Jyot, 63, Janmabhoomi

Marg, Fort, Bombay - 400 001 (India) ......Petitioners

Vis.

1. Bar Council of India, established under

the provisions of theAdvocatesAct 1961,and having its office at 21 RouseAvenue,Deendayal UpadhyayaMarg,New Delhi - 110 0021

2. Bar Council of the State of Maharashtra

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

3. Bar Council of the State of Delhi, havingits address at High Court Building,New Delhi - 110003.

4. Bombay Incorporated Law Society,having

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

5. BarAssociation of the SupremeCourt ofIndia, having its office at SupremeCourt

----- -

of India, Tilak Marg, New Delhi - 110001.

6. BarAssociation of India, having its officeat 93, LawyersChambers, SupremeCourtof India, Tilak Marg, New Delhi - 110001.

7. Union of India,

8. Reserve Bank of India, being a bodyconstituted under the provisions of theReserve BankAct, 1934 having itsprincipal office at HornimanCircle,Bombay - 400 023.

9. Directorate of Enforcement,ReseNe Bankof India, having its office at JanmabhoomiChambers, New Marine Lines, Bombay.

10. Central Board of Direct Taxes,Ministryof Finance, North Block, New Delhi.

11. Chief Commissioner of IncomeTax,Aaykar Bhavan, New Marine Lines, Bombay j

12. White & Case, a firm of lawyers havingits head office at 1155Avenue of theAmericans, New York, NewYork 10036,United States of America and with officesat the Nirmal Building, NarimanPoint,Mumbai - 400021.

13. Chadbourne& Parke, a law firm havingits head office at Rockefeller Plaza, NewYork, New York 11012-0127,United Statesof America and with offices at Hotel MauryaSheraton, new Delhi and/or at A-168,

Judgment - W.P.1526/1995

3


Anand Niketan, New Delhi - 110 021.

14. Ashurst Morris Crisp having its principal

office at Broadwalla House, 5, Apollo Street,

London EC 2A- 2HA and with offices at

6, Aurangazeb Road, D-202 Chanakyapuri,

New Delhi - 110 011 India

15. Society of India Law Firms,

S-454, Greater Kailash, Part - II,

New Delhi 11- 048 ......Respondents.r

Mr.Chander Uday Singh, Senior Advocate with Mr.Anand Grover withMS.Firdaus Moosa for the petitioner.

Mr.AG. Damle for Respondent NO.2.

Mr.P.A Jani i/by Vigil Juris for Respondent NO.4.

Mr.S.U. Kamdar, Senior Advocate with Mr.Sandeep Mahadik i/by M/s.Bhasin& Co., for Respondent NO.6.

Mr.Rajinder Singh, Senior Advocate, Mr.Deobia, Senior Advocate, Mr.Rv,Desai, Senior Advocate, Mr.M.1. Sethna, Senior Advocate with Mr.AM.Sethna and Mr.vinod Joshi for respondent NO.7,9, 10 and 11.

Mr. AY. Sakhare, Senior Advocate with Mr. N.H. Munjjee & Mr.RajeshTalekar i/by M/s.K. Ashar & Co. for respondent NO.8.

Mr. N.H. Seervai, senior Advocate with Mr. Firdosh Pooniwala i/by MIs. Little& Co. for respondent NO.12.

Mr.Shiraz Rustomji with Anil Agarwal for respondent No.13.

Mr.I.M. Chagla and Mr.D.H. Khambata, Senior Advocates with Mr.SimilPurohit i/by M/s.Kanga & Co. for respondent NO.14.

Mr.S.N. Fadia i/by Mr.Naresh Fadia for Respondent No.1S.

Mr.Venkatesh Dhond with Mr.Prashant Beri i/by M/s.Beri & Co. for Applicants(Intervenors)


CORAM: SWATANTER KUMAR, C.J. & J.P. DEVADHAR, J.

Judgment reserved On 4TH DECEMBER. 2009

Judgment delivered On 16TH DECEMBER. 2009

ORAL JUDGMENT (Per J.P. Devadhar, J.)

1. Basically two questions are raised in this petition. They are,

firstly, whether the permissions granted by the Reserve Bank of India to the

respondent Nos.12 to 14 foreign law firms to establish their place of

business in India (liaison office) under Section 29 of the Foreign Exchange

Regulation Act, 1973 are legal and valid ? Secondly, assuming such

permissions are valid, whether these foreign law firms could carryon their

liaison activities in India only on being enrolled as advocates under the

Advocates Act, 1961 ? To be specific, the question is, whether practising in

non litigious matters amounts to 'practising the profession of law' under

section 29 of the AdvocatesAct, 1961 ?

2. The Parliament has enacted the Advocates Act, 1961 (,1961

Act' for short) to regulate the persons practising the profession of law. To

ensure the dignity and purity of the noble profession of law, the 1961 Act

provides for establishment of the State Bar Councils and the Bar Council of

India. The Bar Councils have been created at the State level as also at the

Central level not only to protect the rights, interests and privileges of its

members but also to protect the interest of the general public by ensuring

them that the professionals rendering the legal services maintain high and

noble traditions of the profession.


3. A person can be said to be practising in litigious matters when

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

another person before any Court or authority. Similarly, a person can be

said to be practising in non litigious matters, when he represents to be an

expert in the field of law and renders legal assistance to another person by

drafting documents, advising clients, giving opinions, etc. There is no

dispute that for a person to practise in litigious matters, he has to be

enrolled as an advocate under the 1961Act. However, the dispute is, where

a person wants to practise in non litigious matters, whether, he should be

enrolled as an advocate under the 1961Act?

4. This writ petition is filed by a society which is duly registered

under the Societies Registration Act, 1860 as well as under the Bombay

Public Trust Act, 1960. The members of the petitioner - society are

Advocates enrolled on the rolls of various Bar Council in India and also law

students. The petitioner has filed the present writ petition in public interest

as according to them, the permission granted by the Reserve Bank of India

('RBI' for short) to the foreign law firms, namely respondents No.12 to 14 to

open liaison offices in India is totally illegal and in gross violation of the

provisions of the 1961 Act. Since the petitioner is concerned with the

practice of legal profession and particularly concerned in ensuring that the

ethical practise prevail in the legal profession in India, the petitioner seeks

declaration that the permission granted by RBI to the respondents No.12 to

14 is bad in law and that the respondentsNo.12 to 14 cannot be permitted to

carryon their activities in India unless they are enrolled as advocates under

the 1961Act.

b


5. Respondents No.12 to 14 who are the foreign law firms

practising the profession of law in U.K. / U.S.A. and having branch offices in

different parts of the world had applied to the RBI during the period 1993 to

1995 seeking permission to open their liaison offices in India. In the

application filed by respondent No.12, it was stated that the activities to be

carried on by the liaison officeswere :-

"A. To act as a coordination and communications channelbetween the White & Case head office and other White& Case offices and its clients in and outside India;

B. To coordinate and liaise with the various Governmentagencies and bodies, including Reserve Bank of India;

C. To act as a coordination and communication channelbetween offices of While & Case and Indian legaladvisors assisting such offices or other clients;

D. To collect information and data in respect of clients andprospective clients and furnish the same to the headoffice and otherWhite & Case offices;

E. To establish business contacts and act as a listeningpost between the head office and the Indian entities;

F. To explore and promote the possibility of foreigninvestments and technical and financial collaborations inIndiawith clients and prospective clients;

G. To provide information regardingWhile & Case to clientsand other interested parties; and

H. To provide administrative, secretarial and other supportservices to VisitingWhile & Case personnel."

Similar applicationswere also made by respondents No.13 and

14 to the RBI.

6. On processing the applications made by respondents No.12 to

-------


14, the RBI granted them permission to open their respective liaison offices

in India, subject to the conditions set out therein. The conditions imposed by

the RBI were :-

"(i) Except the proposed liaison work, representative will notundertake any other activity of a trading commercial orindustrial nature nor shall he enter into any businesscontracts in his own name without our prior permission.

(ii) No commission fees will be charged or any otherremuneration received / income earned by therepresentative for the liaison activities / servicesrendered by the representative or otherwise in India.

(iii) The entire expenses of the representative office will bemet exclusively out of the funds received from abroadthrough normal banking channels.

(iv) The representative shall not borrow or lend any moneyfrom / to any person in India without our prior permission.

(v) The representative shall not acquire, hold (otherwisethan by way of lease for a period not exceeding fiveyears) transfer or dispose of any immovable property inIndia without obtaining prior permission of the ReserveBank of India under Section 31 of the Foreign ExchangeRegulation Act, 1973.

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

(a) a certificate from the auditors to the effect thatduring the year no income was earned by/oraccrued to the office in India.

(b) details of remittances received from abroad dulysupport by bank certificates;

(c) certified copy of the audited final accounts of theoffice in India; and

(d) annual report of the work done by the office inIndia, stating therein the details of actual export orimport, if any, effected during period in respect ofwhich the office had rendered liaison services.

(vii) The representative in India will not have signing /commitment powers except than those which arerequired for normal functioning of representative office


on behalf of the Head Office."

7. In the permission letter, it was, however, specifically stated that

the permission granted to the respondents No.12 to 14 is limited for the

purpose of Section 29 of the Foreign Exchange RegulationAct, 1973 C1973

Act' for short) and that the said permission should not be construed in any

way regularizing, condoning or in any manner validating any irregularities,

contraventions or other lapses if any under the provisions of any other law

for the time-being in force.

8. Mr.C.U. Singh, learned SeniorAdvocate appearing on behalf of

the petitioner submitted that the permission granted by RBI to respondents

No.12 to 14 under Section 29 of the 1973Act is bad in law, because, firstly,

nationals of foreign states intending to practice any profession in India can

be granted permission under Section 30 and not under Section 29 of the

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

1973 Act. Secondly, to carryon the profession of law even in non-litigious

matters, enrollment as advocates under the 1961Act was mandatory. Since

the foreign law firms were not enrolled as advocates under the 1961Act, the

RBI could not have granted permission to the respondents No.12 to 14 to

open their liaison offices in India under Section 29 of the 1973Act.

code for regulating the practice of law in India. He submitted that as per

Section 24 read with Section 29 of the 1961 Act, any person intending to

practise the profession of law must be enrolled as an advocate on any State

Bar Council established under the 1961 Act. Since the expression 'to


practice the profession of law' includes both practise in litigious matters as

well as non-litigious mattes, Mr.Singh submitted that the foreign law firms

namely respondents No.12 to 14 could not have carried on practise in non-

litigious matters without being enrolled as advocates under the 1961Act.

10. Mr.Singh further submitted that the right to practise the

profession of law cannot be said to be confined to physical appearances in

Courts / Tribunals / other authorities, but the right to practise the profession

of law necessarily includes giving legal advise to a client, drafting and

providing any other form of legal assistance. Mr.Singh submitted that the

petitioner is not aversed to the foreign law firms practising the profession of

law in India, however, the grievance of the petitioner is that the foreign law

firms cannot be permitted to practise the profession of law even in non-

litigious matters without being enrolled as advocates under the 1961Act.

11. In support of his argument that the right to practise the

profession of law includes both, practising in litigious matters as well as the

practise in non-litigious matters, Mr.Singh relied upon various decisions,

relevant portions of the said judgments are extracted herein below.

12. The Court of Appeals of New York in the matter of New York

County Lawyers Association (Roel) reported in 3 N.Y. 2D 224, inter alia

held thus :-

" Whether a person gives advice as to NewYork law, Federal law, the law of a sister State, or the law of aforeign country, he is giving legal advice. Likewise, whenlegal documents are prepared for a layman by a person in the


business of preparing such documents. that person ispracticing law whether the documents be prepared inconformity with law of New York or any other law. To holdotherwise would be to state that a member of the New YorkBar only practices law when he deals with local law, amanifestly anomalous statement.

..............................As heretofore pointed out. the public is asliable to injury when an unlicensed person gives advice to anindividual as to his legal rights under foreign law as it is with.respect to his rights under domestic law. The State need nothave separate examinations for those who will specialize inreal estate law. patent law. mining law. foreign law. or anyother law. There are many branches of the law that a Barexamination does not reach, but the test is a general onewhich all qualified applicants are required to take. And so allare equally subject to the same character qualifications. Thusit is not unreasonable to require that a person desiring toengage in the practice of foreign law be admitted to the Bar.here and be subject to the same rules as every other memberof the Bar of this State."

(emphasis supplied)

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

"Based on the foregoing analysis, we hold that whennonlawyer title abstractors examine public records and thenrender an opinion as to the content of those records. they areengaged in the unauthorized practice of law. But if a licensedattorney reviews the title abstractor's report and vouches forits legal sufficiency by Signing the report, title abstractorswould not be engaged in the unauthorizedpractice of law."

reported in 2003S.C.Lexis 293, inter alia held thus :-

(emphasis supplied)

14. In the case of Legal Practice Board VIs. Wilhelmus VanDer

Zwaan reported in (2002) WASC 133, the Supreme Court of Western

Australia, has held thus :-

"The expression "administration of law" in s 77 is to be readas meaning "the practice of law" or "the practice of the law".The practice of the law includes the giving of legal advice andcounsel to others as to their rights and obligations under thelaw. and the preparation of legal instruments by which legal.

11


rights are either obtained. secured or given away. althoughsuch matters may not then. or ever. be the subject ofproceedings in a court. If the giving of such advice andperformance of such services affect important rights of aperson under the law, and if the reasonable protection of therights and property of those advised and served requires thatthe person giving such advise possess legal ski" and aknowledge of the law greater than that possessed by theaverage citizen, then the giving of such advice and theperformance of such services by one for another as a courseof conduct, constitutes the practice of the law. Where aninstrument is to be shaped from a mass of facts andconditions, the legal effect of which must be carefullydetermined by a mind trained in the existing laws in order toensure a specific result and to guard against others, morethan the knowledge of the layman is required. A charge forsuch service brings it within the term "practice of the law"."

o15. The Apex Court in the case of Ex. Capt Harish Uppal VIs.

(emphasis supplied)

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

thus :-

"34. The right of the advocate to practiseenvelopes a lot of acts to be performed by him in discharge ofhis professional duties. Apart from appearing in the courts hecan be consulted by his clients, he can give his legal opinionwhenever sought for, he can draft instruments, pleadings.affidavits or any other documents, he can participate in any_conference involving legal discussions, he can work in anyoffice or firm as a legal officer, he can appear for clientsbefore an arbitrator or arbitrators etc. Such a rule would havenothing to do with a" the acts done by an advocate during hispractice. He may even file vakalat on behalf of a client eventhough his appearance inside the court is not permitted.Conduct in court is a matter concerning the court and hencethe Bar Council cannot claim that what should happen insidethe court could also be regulated by them in exercise of theirdisciplinary powers. The right to practise. no doubt. is thegenus of which the right to appear and conduct cases in thecourt may be a specie. But the right to appear and conductcases in the court is a matter on which the court must anddoes have major supervisory and controlling power. Hence,courts cannot be and are not divested of control orsupervision of conduct in court merely because it may involvethe right of an advocate " " "

(emphasis supplied)


16. In the case of Supreme Court Bar Association VIs. Union of

India reported in (1998) 4 Supreme Court Cases 409, the Apex Court has

held thus :-

"58. After the coming into force of the Advocates Act, 1961,exclusive power for punishing an advocate for "professionalmisconduct" has been conferred on the State Bar Councilconcerned and the Bar Council of India. That act contains adetailed and complete mechanism for suspending or revokingthe licence of an advocate for his "professional misconduct".Since the suspension or revocation of licence of an advocatehas not only civil consequencesbut also penal consequences,the punishment being in the nature of penalty, the provisionshave to be strictly construed. Punishment by way ofsuspending the licence of an advocate can only be imposedby the competent statutory body· after the charge isestablished against the advocate in a manner prescribed bytheAct and the Rules framed thereunder.

71. Thus, after the coming force of the AdvocatesAct, 1961with effect from 19-5-1961, matters connected with theenrolment of advocates as also their punishment forprofessional misconduct is governed by the provisions of thatAct only. Since, the jurisdiction to grant licence to a lawgraduate to practise as an advocate vests exclusively in theBar Council of the State concerned, the jurisdiction tosuspend his licence for a specified term or to revoke it alsovests in the same body."

(emphasis supplied)

17. In the case of Pravin C. Shah VIs. K.A. Mohd Ali reported in

(2001) 8 Supreme Court Cases 650, the Apex Court has held thus :-

"16. . The right of the advocate to practiseenvelops a lot of acts to be performed by him in discharge ofhis professional duties. Apart from appearing in the courts hecan be consulted by his clients, he can give his legal opinionwhenever sought for, he can draft instruments, pleadings.._.affidavits or any other documents. he can participate in anyconference involving legal discussions etc "

(emphasis supplied)

Judgment - W.P.1S26/1995

18. In the light of the aforesaid decisions, Mr.Singh submitted that

the lawyers practising in litigious as well as non-litigious matters are

governed by the 1961Act and bound by the rules framed by the regulatory

body, namely, the Bar Council of India. He submitted that the Bar Council is

constituted with a view to keep check on the lawyers who render services to

their clients in litigious as well as non-litigious matters. He submitted that no

country in the world permits unregulated practise of law and, therefore, the

permission granted by the RBI to the respondents No.12 to 14, under

Section 29 of the 1973 Act to open a liaison office in India amounts to

permitting the foreign law firms to open their branch offices in India and

practise the profession of law without being enrolled as advocates under the

1961 Act. He submitted that in view of the permission granted by RBI, the

foreign law firms, namely respondents No.12 to 14 have an unfair advantage

over the advocates practising the profession of law in India, because, Indian

advocates practising in non litigious matters are subjected to the provisions

of the 1961 Act and the rules framed by the Bar Council, whereas, the

foreign law firms like respondents No.12 to 14 are neither subjected to the

1961 Act nor the rules framed by the Bar Council. Accordingly, Mr.Singh

submitted that the permission granted by RBI being in gross violation of the

provisions contained in the 1973 Act as well as the 1961 Act, the said

permission must be declared to be illegal and contrary to law.

19. Counsel for the Bar Council of India and Bar Council of

Maharashtra & Goa have adopted the arguments advanced by the counsel


for the petitioner.

20. Mr.Rajinder Singh, SeniorAdvocate appearing on behalf of the

Union of India submitted that there is no proposal, as of now, to allow foreign

lawyers to practice Indian law in Indian Courts. He submitted that the

Government is still in the process of consulting all the stake holders and any

decision on the issue will be taken after considering the views of all the

stake holders. However, Counsel for the Union of India submitted that for

drafting legal documents or giving opinion on aspects of foreign or

international law, one need not be on the roll of the Bar Council. He further

submitted that if the contention of the petitioner is accepted then, no

bureaucrat will be able to draft or given opinion. He submitted that reading

various provisions of the 1961Act particularly Section 24, 29 and 45 of the

1961 Act, it becomes clear that the 1961 Act prescribes the mode and the

manner of enrolling advocates who want to practice the profession of law

before Courts, Tribunals and other authorities and provide for punitive action

against advocates who have violated the provisions contained in the 1961

Act and the rules framed by the Bar Council. Counsel for the Union of India

further submitted that the fact that the 1961Act contains penal provisions in

respect of persons illegally practicing in Courts and other authorities, and

does not provide any penal provisions tor the breaches committed by

persons practicing in non-litigious matters clearly shows that persons

practicing in non-litigious matters are not governed by the provisions of the

1961Act.

21. Counsel for the Union of India further submitted that as per the

J_(

Judgment - W.P.152611995

rules framed by the Bar Council, an advocate on being appointed as a Law

secretary is required to intimate the Bar Council to suspend his enrollment

during his tenure as Law Secretary.Similarly,a retired Supreme Court Judge

is not required to be on the role of Bar Council for drafting opinions or

carrying on the chamber practice. Referring to Section 477 of the Criminal

Procedure Code, Civil Code Manual 1986, Section 13 of the Family Courts

Act, 1984 and Consumer ProtectionRegulation, 2005, Counsel for the Union

of India submitted that the persons who are permitted to act as petition

writers in the criminal courts or persons nominated an amicus curie need not

be on the roll of the Bar Council. In these circumstances, Counsel for the

Union of India submitted that a person carrying on the profession of drafting

and giving opinion is not required to be enrolled as advocate under the 1961

Act and, therefore, no fault can be found with RBI in giving permission to the

respondents No.12 to 14 to open up their liaison offices in India.

22. Mr.Sakhare, learned Senior Advocate appearing on behalf of

RBI submitted that the permission given by RBI to the respondents No.12 to

14 was within the scope and ambit of powers vested in RBI under the 1973

Act. He submitted that Section 29(1)(a) of the 1973 Act empowers RBI to

grant permission to a resident outside India to establish a branch office or a

place of business in India. He submitted that RBI is not concerned with the

provisions contained in the 1961 Act and in any event, the permission

granted by RBI is only to establish a liaison / representative office to act as a

communication channel between the overseas principal and parties in India.

23. Counsel for RBI further submitted that the respondents No.12


to 14 had stated in their application that they wish to undertake liaison

activities in India and further specifically stated that they will not appear in

Indian Courts and shall not practice Indian law. Since the permission

granted by RBI was limited to granting permissions to overseas entities for

undertaking specific activities enumerated in the permission letter and the

said permission was not to be construed in any way regularizing or

validating any irregularities or lapses under any other law, it cannot be said

that the permission granted by RBI to respondents No.12 to 14 is illegal or

contrary to law. Moreover, the permission granted was subject to the

respondents No.12 to 14 submitting annual report. In fact, on perusal of the

particulars furnished by the respondent NO.13,it was prima facie found that

the respondent No.13 has acted contrary to and beyond the scope of

permission granted by RBI and accordingly a show-cause notice was issued

to the respondent No.13. On receiving the reply to the show-cause notice

and on being satisfied that the respondent No.13 was functioning within the

ambit of the permission granted by the RBI, the show-cause notice was

dropped. As the permission granted by RBI does not extend to the practise

of profession of law in India, Counsel for RBI submitted that the permission

granted by RBI to open liaison offices in India cannot be faulted.

24. Mr.Seervai, learned Senior Advocate appearing on behalf of

one of the main contesting foreign law firm, namely the respondent No.12,

submitted that the argument of the petitioner that the permission granted by

RBI to the foreign law firms to establish liaison offices in India is in violation

of the 1961 Act, is completely misconceived because, the 1961 Act is

enacted by the Parliament in exercise of the powers conferred under entry

1

"Judgment - W.P.1S26/199S

77 and 78 in List I to the Seventh Schedule to the Constitution, which relate

to constitution and organization of the Supreme Court and the High Courts

as well as the persons entitled to practice before the Supreme Court and

before the High Courts. Since the source of power in enacting the 1961Act

relates to the persons entitled to practise before the Supreme Court and

before the High Court, it is clear that the 1961 Act would apply to persons

practising litigious matters before the Supreme Court and the High Courts

and the said Act would not apply to the persons practising in non-litigious

matters. He submitted that unless a legislation is enacted to regulate the

persons practising in non-litigious matters by invoking entry 26 in List III to

the Seventh Schedule to the Constitution which deals with legal, medical

and other profession, it cannot be said that the persons practising in non-

litigious matters are governed by the provisions of the 1961Act.

25. Strong reliance was placed by Mr.Seervai on the decision of

the Apex Court in the case of D.N. Mohindroo VIs. Bar Council reported in

AIR 1968 S.C. 888, (see page 893) wherein it is inter alia held thus :-

"10. .. Though the Act relates to the legalpractitioners, in its pith and substance it is an enactmentwhich concerns itself with the qualifications, enrolment, rightto practise and discipline of the advocates. As provided bythe Act once a person is enrolled by anyone of the State BarCouncils, he becomes entitled to practise in all courtsincluding the Supreme Court. As aforesaid, the Act createsone common Bar, all its members being of one class,namely, advocates. Since all those who have been enrolledhave a right to practise in the Supreme Court and the HighCourts, the Act is a piece of legislation which deals withpersons entitled to practise before the Supreme Court andthe High Courts. Therefore, the Act must be held to fall_within entries 77 and 78 of List I. As the power of legislationrelating to those entitled to practise in the Supreme Courtand the High Courts is carved out from the general power to


legislate in relation to legal and other professions in entry 26of List "I, it is an error to say, as the High Court did, that theAct is a composite legislation partly falling under entries 77and 78 of List I and partly under entry 26 of List "I."

(emphasis supplied)

In the light of the aforesaid judgment of the Apex Court,

learned counsel for respondent No.12 submitted that the question raised in

the petition being squarely covered against the petitioner, the writ petition is

liable to be dismissed.

26. Mr.Seervai further submitted that the 1961 Act is enacted to

amend and consolidate the law relating to legal practitioners and to provide

for the Constitution of Bar Councils and an All-India Bar. He submitted that

the foreign law firm like the respondent No.12 had neither sought permission

nor permission has been granted by RBI to the respondent No.12 to practise

the profession of law as legal practitioners or advocates. Permission has

been granted by RBI to open a liaison office in India which is within the

domain of RBI under the 1973 Act. Therefore, in the facts of the present

case, reference to the 1961 Act is wholly misconceived.

27. Relying on two decisions of the Apex Court one in the case of

the Bar Council Vis. TheState of U.P. reported in (1973) 1 sec 261 and

another in the case of In Re lily Isabel Thomas reported in AIR 1964 SC

855, Mr.Seervai submitted that the right to practise the profession of law

under the 1961 Act is relatable only to the advocates practising the

profession of law before Courts / Tribunals / any other authority and the said

Act has no application to the persons practising in non-litigious matters.


Mr.Seervai submitted that if the contention of the petitioner that the 1961Act

applies both to persons practicing in non-litigious matters as well as litigious

matters practised by persons before the Supreme Courts and High Courts is

accepted, then it would render the Advocates Act, 1961 ultra vires the

Constitution, because the 1961 Act is enacted in exercise of powers vested

in the Central Government under entry 77 and 78 in List of the Seventh

Schedule to the Constitution which specifically provides for enacting law

relating to persons practising in the Supreme Court and the High Courts.

Therefore, the construction put forth by the petitioner which renders the

1961Act ultra vires the construction cannot be accepted.

28. Mr.Seervai further submitted that Section 29 of the 1961Act is

merely declaratory in nature and it merely provides that from the appointed

day there shall be only one class of persons entitled to practise the

profession of law. Section 29 does not confer the right to practise the

profession of law. It is Section 33 which provides that advocates enrolled

under the 1961 Act alone are entitled to practise in any Court or before any

authority. Moreover, Section 49(1)(ag) and Section 49(1)(ah) of the 1961

Act, empower the Bar Council of India to make rules relating to the class or

category of persons entitled to be enrolled as advocates and the conditions

subject to which an advocate shall have the right to practise. Therefore, the

1961 Act which applies to persons practising in litigious matters before the

Supreme Court / High Courts / Tribunals cannot be applied to persons

practising in non-litigious matters.

29. In support of the above contentions, Mr.Seervaiplaced reliance

1

"Judgment - W.P.1526/1995

on various decisions and for the sake of convenience, relevant portions of

the respective judgments are extracted herein below. In the case of

Sushma Suri VIs. Govt. of National Capital Territory of Delhi & Another

reported in (1999) 1 Supreme Court Cases 330, the Apex Court inter alia

held thus :-

"6. If a person on being enrolled as an advocate ceasesto practise law and takes up an employment. such a personcan by no stretch of imagination be termed'as an advocate.However, if a personwho is on the rolls of any Bar Council isengaged either by employment or otherwise of the Union orthe State or any corporate body or person practises before acourt as an advocate for and on behalf of such Government,corporation or authority or person, the question is whethersuch a person also answers the description of an advocateunder the Act. That is the precise question arising for ourconsideration in this case.

9. . The expression "members of the Bar" in therelevant Rule would only mean that particular class ofpersons who are actually practising in courts of law asaleaders or advocates. In a very general sense an advocateis a person who acts or pleads for another in a court and if aPublic Prosecutor or a Government Counsel is on the rolls ofthe Bar Council and is entitled to practise under the Act, heanswers the description of an advocate.

10. ............. The test. therefore. is not whether suchperson is engaged on terms of salary or by payment ofremuneration. but whether he is engaged to act or plead onits behalf in a court of law as an advocate. In that event theterms of engagement will not matter at all. What is ofessence is as to what such law officer engaged by theGovernment does - whether he acts or pleads in court onbehalf of his employer or otherwise. If he is not acting orpleading on behalf of his employer, then he ceases to be anadvocate. If the terms of engagement are such that he doesnot have to act or plead, but does other kinds of work, thenhe becomes a mere employee of the Government or thebody corporate. Therefore, the Bar Council of India hasunderstood the expression "advocate" as one who is actuallypractising before courts which expression would includeeven those who are law officers appointed as such by theGovernment or body corporate."

(emphasis supplied)

1

"Judgment - W.P.1526/1995

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

(1999) 3 SupremeCourt Cases176, the Apex Court inter alia held thus :-

"25. Section 49(1)(ag) also deals with the class orcategory of persons entitled to be enrolled as advocates.Thus, by the said provision, the Bar Council of India inexercise of its rule-making power can add to the class ofpersons contemplated by Section 29 by enlarging the saidclass of advocates entitled to practise as full-fledgedadvocates. Entitlement to practise the profession of Lawnecessarily means full-fledged entitlement to plead andargue cases of their clients before the courts of law. Therecannot be any truncated right to practise the profession ofLaw which is sought to be culled out by Shri P.P. Rao,learned Senior Counsel for the Bar Council of India on aconjoint reading of Sections 29 and 49(1)(ag) of theAct."

(emphasis supplied)

31. The Apex Court in the case of Indian Council of legal Aid

and Advice VIs. Bar Council of India reported in (1995) 1 see 732, has

inter alia held thus:

"3. It will be seen from the above provisions that unless aperson is enrolled as an advocate by a State Bar Council, heshall have no right to practise in a court of law or before anyother Tribunal or authority. Once a person fulfils therequirements of Section 24 for enrolment, he becomesentitled to be enrolled as an advocate and on such enrolmenthe acquires a right to practise as stated above. Having thusacquired a right to practise he incurs certain obligations inregard to his conduct as a member of the noble profession.The bar Councils are enjoined with the duty to act assentinels of professional conduct and must ensure that thedignity and purity of the profession are in no wayundermined. Its job is to uphold the standards ofprofessional conduct and etiquette. Thus, every State BarCouncil and the Bar Council of India has a public duty toperform, namely, to ensure that the monopoly of practicegranted under the Act is not misused or abused by a personwho is enrolled as an advocate. The Bar Councils havebeen created at the State level as well as the Central levelnot only to protect the rights, interests and privileges of its_


members but also to protect the litigating public by ensuringthat high and noble traditions are maintained so that the_purity and dignity of the profession are not jeopardized. It isgenerally believed that members of the legal profession havecertain social obligations, e.g., to render "pro bono publico"service to the poor and the underprivileged. Since the dutyof a lawyer is to assist the court in the administration ofjustice, the practice of law has a public utility flavour and,therefore, he must strictly and scrupulously abide by theCode of Conduct behoving the noble profession and mustnot indulge in any activity which may tend to lower the imageof the profession in society. That is why the functions of theBar Council include the laying down of standards ofprofessional conduct and etiquette which advocates mustfollow to maintain the dignity and purity of the profession."

(emphasis supplied)

32. The Apex Court in the case of Jamilabai VIs. Shankarlalreported inAIR 1975 S.C. 2202, has inter alia held thus :-

......... There is no statutory provision decisive of thisissue (whether a pleader can compromise a Suit in theinterest of his client, though the vakalatnama is silent) andwe have to garner the principles from various factors like thestatus and significance of the legal profession in society, thewider powers conferred on lawyers as distinguished fromordinary agents on account of the triune facets of the role ofan advocate vis-a-vis the client, the Court and the public andits traditions and canons of professional ethics and etiquette.Above all, the paramount consideration that the Bench andthe Bar form a noble and dynamic partnership geared to thegreat social goal of administration of justice puts the lawyerappearing in the Court in a class by himself and to comparehim with an ordinary agent may be to lose sight of the lawyeras engineer of the rule of law in society."

(bracketed portion is supplied)

33. The Apex Court in the case of Ashwini Kumar VIs.Arabinda

Bose reported in AIR 1952 S.C. 369, held thus :-

"6. A brief historical survey of the functions, rights andduties of legal practitioners in this country may facilitateappreciation of the contentions of the parties. Before theIndian High Courts Act of 1861 (24 and 25 Vict. Ch. 104)was enacted, there were, in the territories subject to the

------ --_.


British rule in India, Supreme Courts exercising jurisdictionmainly in the Presidency Towns, and Sudder Courtsexercising jurisdiction over the mufassil. Though theSupreme Courts were given, by the Charter Acts and theLetters Patent establishing them, power to enroll Advocateswho could be authorized by the rules to act as well as toplead in the Supreme Courts rules were made empoweringAdvocates only to appear and plead and not to act, whileAttorneys were enrolled and authorised to act and not toplead. In the Sudder Courts and the Courts subordinatethereto, pleaders who obtained a certificate from thoseCourts were allowed both the act and plead.

15. It seems reasonable, therefore, to assume that thepractice of law in this country generally involves the exerciseof both the functions of acting and pleading on behalf of alitigant party: in other words, the Bar in India, generallyspeaking is organised as a single agency. Accordingly.when the Legislature confers upon an advocate "the right topractise" in a Court, it is legitimate to understand thatexpression as authorising him to appear and plead as wellas to act on behalf of suitors in that Court, It is true that theword "practise" used in relation to a given profession meanssimply the pursuit of that profession and involves theexercise of the functions which are ordinarily exercised bythe members of the profession. But it seems to be fallaciousto relate that expression, as applied to an advocate, either,on the one hand, to the Court in which the advocate isenrolled or, on the other, to the Court in which he seeks toexercise the statutory right conferred on him. It must, in ouropinion, be related to the general constitution of the bar inIndia as a single agency in dealing with the litigant public, asystem which prevails all over this vast country except intwo small pockets where a dual agency imported fromEngland was maintained, owning, as we have seen, tohistorical reasons.

16. We are accordingly unable to accept the suggestionthat because the advocates of the Supreme Court are not,under the Rules of that Court, entitled to act, the word"practise" as used by Parliament in s. 2 must be understoodin the restricted sense of appearing and pleading only.Parliament was. of course, aware that the right of theadvocates of the Supreme Court to practise in that Courtwas confined only to appearing and pleading. but the objectof s. 2 was to confer upon a designated body of persons,namely, the advocates of the Supreme Court, a right topractise in other Courts, viz. the various High Courts inIndia, whether or not they were already enrolled in suchCourts. This statutory right, which is conferred on theSupreme Court Advocates in relation to other Courts and


which they did not have before, cannot, as a matter ofconstruction, be taken to be controlled by reference to whatthey are allowed or not allowed to do in the Supreme Courtunder the Rules of that Court. Such Rules are liable to bealtered at any time in exercise of the rule-making powerconferred byArt. 145 of the Constitution."

(emphasis supplied)

34. This Court in the case of Mu/chand Gu/abchand VIs.

Mukund S. Bhide reported in AIR 1952 Bom 296, has inter alia held thus :-

''Therefore, his right to practise is controlled by thisimportant provision that any other law for the time being inforce may restrict or take away his right. Therefore, if theCo-operative SocietiesAct were to provide that an advocateof the High Court of Bombay shall not practise before thearbitral tribunal set up under that Act, then the right of theadvocate will be circumscribed by the provisions of that law.It should be remembered that it is not the fact that a manhas passed a law examination or has acquired a law degreethat entitles him to practise in Courts of law; his right topractise depends upon his being enrolled as an advocateand he is enrolled as an advocate on terms and conditionslaid down in the Bar Councils Act. Therefore, as I saidbefore, his very charter which entitles him to practise laysdown conditions and limitations, and one of the conditionsand limitations is that he can only· practise before suchtribunals as the law permits him and he may not practisebefore such tribunals as the law lays down as beingprohibited to lawyers."

(emphasis supplied)

In the light of the aforesaid decisions, counsel for respondent

No.12 is submitted that the expression "right to practise the profession of

law" is restricted to the practise in litigious matters and cannot be extended

to the persons practising in non-litigiousmatters.

35. Mr.Seervai further submitted that prior to the 1961 Act, the

Indian Bar Councils Act, 1926 was enacted with a view to consolidate and


amend the law relating to the legal practitioners entitled to practice in certain

Courts in the Provinces of India. The 1961Act was enacted by repealing the

1926Act. Therefore, in the absence of any intention to the contrary, it must

be held that the 1926Act as well as the 1961Act provide for the rights and

obligations of the legal practitioners practising the profession of law before

the Courts / Tribunals / other authorities. The submission is that when a

statute is repealed and re-enacted and words in the repealed statute are

reproduced in the new statute, then, ordinarily, the words in the re-enacted

statute should be interpreted in the sense the said words in the repealedAct

were judicially interpreted. In support of the above contention, he relied on a

decision of the Apex Court in the case of State of Madras VIs. Gannon

Dunkerley & Co. reported in AIR 1958 S.C. 580 and a decision of the Apex

Court in the case of Bengal Immunity Co. Limited VIs. State of Bihar

reported in AIR 1955 S.C. 661.

36. Alternatively, Mr.Seervaisubmitted that even assuming that the

expression 'to practice the profession of law' in Section 29 of the 1961 Act

applies to persons practising in litigious matters as well as non-litigious

matters, then and in that event, the liaison activities carried on by the

respondent No.12 cannot be said to fall in any of the above two categories,

because the activity carried by their liaison office in India was only a liaison

activity and not an activity covered under the 1961 Act and, therefore, the

permission granted by RBI under Section 29 of the 1973Act to carryon the

liaison activities in India cannot be faulted.

37. Lastly, Mr.Seervai submitted that the respondent No.12 has


performed the liaison activities within the frame work of the terms and

conditions imposed by the RBI. The report submitted by the Officers of RBI

bear testimony to the claim of respondent NO.12. He submitted that the

argument that the respondent No.12 ought to have applied for permission

under Section 30 of the 1973Act is without any merit because that section

requires foreign nationals to take prior permission before taking up

employment etc. in India wherein the foreign exchange acquired would be

required to be remitted outside India. In the present case, the foreign law

firms were not taking up any employment in India and they were not seeking

to carryon trade or business in Indiawhich involved forwarding remittances

outside India. Therefore, the respondent No.12 could not have applied for

permission under Section 30 of the 1973Act. For all the aforesaid reasons,

Mr.Seervai submitted that the permission granted by RBI to open liaison

offices in India under Section 29 of the 1973 Act was valid and to such a

case the 1961Act would not be applicable.

38. Counsel for respondent No.13 and 14 while adopting the

arguments advanced by Mr.Seervai, submitted that the respondent No.13

and 14 have not violated any of the conditions imposed by RBI and,

therefore, the activities carried on by respondent Nos.13 & 14 being within

the framework of the permission granted by R.B.I., the writ petition is liable

to be dismissed.

39. We have carefully considered the rival submissions.

40. In the present case, the core dispute is with reference to the


permission granted by RBI to the respondents No.12 to 14 to open their

liaison offices in India under Section 29 of the 1973Act. The respondent No.

12 to 14 are the foreign law firms practising the profession of law in U.K. I

U.S.A. and other parts of the word. However, even after establishing the

liaison offices in India, the said foreign law firms have not enrolled

themselves as advocates under the 1961Act.

41. The first question to be considered herein is, what were the

liaison activities carried on by the foreign law firms in India? In the affidavit

in reply, these foreign law firms have stated that they have opened the

liaison offices in India mainly to act as a coordination and communications

channel between the head office I branch offices and its clients in and

outside India. Since the Head Office and the branch offices of the foreign

law firms are engaged in providing various legal services to their clients

carrying on wide range of businesses all over the world, the liaison activity

carried on in India, namely, to act as a coordination and communication

channel would obviously be relating to providing legal services to the clients.

The respondent No.12 has further claimed in its affidavit in reply that their

liaison activity inter alia included providing "office support services for

lawyers of those offices working in India on India related matters" and also

included drafting documents, reviewing and providing comments on

documents, conducting negotiations and advising clients on international

standards and customary practice relating to the client's transaction etc. It is

contended by the respondent No.12 to 14 that they never had and has no

intention to practise the profession of law in India. Thus, from the affidavit in

reply, it is evident that the liaison activities were nothing but practising the


profession of law in non litigious matters.

42. The question then to be considered is, whether the foreign law

firms could carryon the practise in non litigious matters in India by obtaining

permission from R.B.I. under section 29 of the 1973 Act? Section 29 of the

1973 Act provides that without the permission of RBI, no person resident

outside India or a person who is not a citizen of India but is resident in India

or a Company which is not incorporated in India shall establish in India a

branch office or other place of business, for carrying any activity of a trading,

commercial or industrial nature. Foreign law firms engaged in practising the

profession of law in the foreign countries cannot be said to be engaged in

industrial, commercial and trading activities. The liaison activities of

respondent Nos. 12 to 14 in India being activities relating to the professionof

law, no permission could be granted to the foreign law firms under section

29 of the 1973 Act. The Apex Court in the case of M.P. Electricity Board

Vis. Shiv Narayan reported in (2005) 7 Supreme Court Cases 283 has

held that there is a fundamental distinction between the professional activity

and the activity of a commercial character. The Apex Court has further held

that to compare the legal profession with that of trade and business would

be totally incorrect. Therefore, in the facts of the present case, the RBI

could not have granted permission to carryon the practise in non litigious

matters by opening liaison offices in India under Section 29 of the 1973Act.

43. It is not the case of the foreign law firms that the activity carried

on by their liaison offices in India are different from the activity carried on by

them at their head office and the branch offices world over. In fact, it is the

__J

1"


specific case of respondents No.12 to 14 that the main activity at their liaison

offices in India was to act as a coordination and communication channel

between the head office / branch office and its clients in and outside India.

Thus, the activity carried on by the foreign law firms at their Head Office,

branch offices and liaison offices in India were inextricately linked to the

practise in non litigious matters. Section 29 of the 1973 Act relates to

granting permission for business purposes and not for professional purposes

and, therefore, the RBI could not have granted permission to these foreign

law firms under Section 29 of the 1973Act.

44. It appears that before approaching RBI, these foreign law firms

had approached the Foreign Investment Promotion Board (FIPB for short) a

High Powered body established under the New Industrial Policy seeking

their approval in the matter. The FIPB had rejected the proposal submitted

by the foreign law firms. Thereafter, these law firms sought approval from

RBI and RBI granted the approval in spite of the rejection of FIPB. Though

specific grievance to that effect is made in the petition, the RBI has chosen

not to deal with those grievances in its affidavit in reply. Thus, in the present

case, apparently, the stand taken by RBI & FIPB are mutually contradictory.

45. In any event, the fundamental question to be considered herein

is, whether the foreign law firms namely respondent Nos.12 to 14 by

opening liaison offices in India could carryon the practise in non litigious

matters without being enrolled asAdvocates under the 1961Act?

46. Before dealing with the rival contentions on the above


question, we may quote Sections 29, 30, 33 and 35 of the 1961 Act, which

read thus:

"29. Advocates to be the only recognised class ofpersons entitled to practise law.. Subject to the provisionsof this Act and any rules made thereunder, there shall, asfrom the appointed day, be only one class of persons entitledto practise the profession of law, namely, advocates.

(not brought into force so far)

30. Right of advocates to practise. - Subject toprovisions of this Act, every advocate whose name isentered in the State roll shall be entitled as of right topractise throughout the territories to which this Act extends, -

(i) in all Courts including the Supreme Court;

(ii) before any tribunal or person legally authorizedto take evidence;

(iii) before any other authority or person beforewhom such advocate by or under any law forthe time being in force entitled to practise.

33. Advocates alone entitled to practise. - Except asotherwise provided in this Act or in any other law for the timebeing in force, no person shall, on or after the appointed day,be entitled to practise in any Court or before any authority orperson unless he is enrolled as an advocate under this Act."

35. Punishment of advocates for misconduct - (1) Whereon receipt of a complaint or otherwise a State Bar Councilhas reason to believe that any advocate on its roll has beenguilty of professional or other misconduct, it shall refer thecase for disposal to its disciplinary committee.

(i-A) The State Bar Council may, either of its own motion oron application made to it by any person interested, withdrawa proceeding pending before its disciplinary committee anddirect the inquiry to be made by any other disciplinarycommittee of that State Bar Council.

(2) The disciplinary committee of a State Bar Council [***]shall fix a date for the hearing of the case and shall cause anotice thereof to be given to the advocate concerned and tothe Advocate-General of the State.

(3) The disciplinary committee of a State Bar Council after


giving the advocate concerned and the Advocate-General anopportunity of being heard, may make any of the followingorders,namely:-

(a) dismiss the complaint or, where the proceedingswere initiated at the instance of the State Bar Council,direct that the proceedings be filed;

(b) reprimand the advocate;

(c) suspend the advocate from practice or such periodas it may deem fit;

(d) remove the name of the advocate from the State rollof advocates.

(4) Where an advocate is suspended from practice underclause (c) of sub-section (3), he shall, during the period ofsuspension, be debarred from practising in any Court orbefore any authority or person in India.

(5) Where any notice is issued to the Advocate-General undersub-section (2), the Advocate-General may appear before thedisciplinary committee of the State Bar Council either inperson or through any advocate appearing on his behalf.

Explanation- In this section, (section 37 and section 38), theexpressions "Advocate-General" and "Advocate-General ofthe State" shall, in relation to the Union territory of Delhi, meanthe Additional Solicitor General of India.

47. The argument of the foreign law firms is that section 29 of the

1961 Act is declaratory in nature and the said section merely specifies the

persons who are entitled to practise the profession of law.According to the

respondent Nos. 12 to 14, the expression 'entitled to practise the profession

of law' in section 29 of the 1961 Act does not specify the field in which the

profession of law could be practised. It is section 33 of the 1961Act which

provides that advocates alone are entitled to practise in any Court or before

any authority or person. Therefore, according to respondent Nos.12 to 14

the 1961 Act applies to persons practising as advocates before any Court /

authority and not to persons practising in non litigious matters. The


question, therefore, to be considered is, whether the 1961Act applies only to

persons practising in litigious matters, that is, practising before Court and

other authorities?

48. In the statements of Objects & Reasons for enacting the 1961

Act, it is stated that the main object of the Act is to establish All India Bar

Council and a common roll of advocates and Advocate on the common roll

having a right to practise in any part of the country and in any Court,

including the Supreme Court. Thus, from the Statement of Objects and

Reasons, it is seen that the 1961Act is intended to apply to (one) persons

practising the profession of law in any part of the country and (two) persons

practising the profession of law in any Court including the Supreme Court.

Thus, from the statement of objects and reasons it is evident that the 1961

Act is intended to apply not only to the persons practising before the Courts

but it is also intended to apply to persons who are practising in non litigious

matters outside the Court.

49. Apart from the above, Section 29 of the 1961 Act specifically

provides is that from the appointed day, there shall be only one class of

persons entitled to practise the profession of law, namely Advocates. It is

apparent that prior to the 1961 Act there were different classes of persons

entitled to practise the profession of law and from the appointee day all

these class of persons practising the profession of law, would form one

class, namely, advocates. Thus, section 29 of the 1961Act clearly provides

that from the appointed day only advocates are entitled to practise the

profession of law whether before any Court / authority or outside the Court


by way of practise in non litigiousmatters.

50. Section 33 of the 1961Act is a prohibitory section in the sense

that it debars any person from appearing before any Court or authority

unless he is enrolled as an advocate under the 1961Act. The bar contained

in section 33 of the 1961Act has nothing to do with the persons entitled to

be enrolled as advocates under section 29 of the 1961 Act. A person

enrolled as an advocate under section 29 of the 1961 Act, mayor may not

be desirous of appearing before the Courts. He may be interested in

practising only in non litigious matters. Therefore, the bar under section 33

from appearing in any Court (except when permitted by Court under Section

32 of the 1961Act or any otherAct) unless enrolled as an advocate does not

bar a person from being enrolled as an advocate under section 29 of the

1961 Act for practising the profession of law in non litigious matters. The

Apex Court in the case of EX-Capt.Harish Uppal (supra) has held that the

right to practise is the genus of which the right to appear and conduct cases

in the Court may be a specie. Therefore, the fact that section 33 of the 1961

Act provides that advocates alone are entitled to practise before any Court /

authority it cannot be inferred that the 1961 Act applies only to persons

practising in litigious matters and would not apply to person practising in non

litigious matters.

51. It was contended that the 1961Act does not contain any penal

provisions for breaches committed by a person practicing in non-litigious

matter and, therefore, the 1961 Act cannot apply to persons practising in

non-litigious matters. There is no merit in this contention, because, section


35 of the 1961 Act provides punishment to an advocate who is found to be

guilty of professional or other misconduct. The fact that section 45 of the

1961Act provides imprisonment for persons illegally practising in Courts and

before other authorities, it cannot be said that the 1961Act does not contain

provisions to deal with the persons found guilty of misconduct while

practising in non litigious matters. Once it is held that the persons entitled to

practise the profession of law under the 1961 Act covers the persons

practising the profession of law in litigious matters as well as non-litigious

matters, then, the penal provisions contained in section 35 of the 1961 Act

would apply not only to persons practising in litigious matter, but would also

apply to persons practising the profession of law in non-litigious matters.

The very object of the 1961Act and the Rules framed by the Bar Council of

India are to ensure that the persons practising the profession of law whether

in litigious matters or in non litigious matters, maintain high standards in

professional conduct and etiquette and, therefore, it cannot be said that the

persons practising in non litigiousmatters are not governed by the 1961Act.

52. Strong reliance was placed by the counsel for the respondent

No.12 on the decision of the Apex Court in the case of O.N. Mohindroo

(supra) in support of his contention that the 1961Act applies only to persons

practising the profession of law before Courts / Tribunals / other authorities.

It is true that the Apex Court in the above case has held that the 1961Act is

enacted by the Parliament in exercise of its powers under entry 77 and 78 in

List I of the Seventh Schedule to the Constitution. However, the fact that

entry 77 and 78 in List I refers to the persons practising before the Supreme

Court and the High Courts, it cannot be said that the 1961Act is restricted to


the persons practising only before the Supreme Court and High Courts.

Practising the profession of law involves a larger concept whereas,

practising before the Courts is only a part of that concept. If the literal

construction put forth by the respondents is accepted then, the Parliament

under entry 77 & 78 in List I of the Seventh Schedule to make legislation

only in respect of the advocates practising before the Supreme Court / High

Courts and the Parliament cannot legislate under that entry in respect of

advocates practising before the District Courts / Magistrate's Courts / other

Courts / Tribunals / authorities and consequently, the 1961Act to the extent

it applies to advocates practising in Courts other than the High Courts and

Supreme Court would be ultra vires the Constitution. Such a narrow

construction is unwarranted because, once the Parliament invokes its power

to legislate on advocates practising the profession of law, then the entire

field relating to advocates would be open to the Parliament to legislate and

accordingly the 1961Act has been enacted to cover the entire field. In any

event, the question as to whether the persons practising the profession of

law exclusively in non-litigious matters are covered under the 1961 Act, or

not was not an issue directly or indirectly considered by the Apex Court in

the case of a.N. Mohindroo (supra). Therefore, the decision of the Apex

Court in the above case does not support the case of the contesting

respondents.

53. Similarly, in all other cases relied upon by the counsel for the

contesting respondents, the question as to whether a person, practising in

non-litigious matters was required to be enrolled as advocates under the

1961Act was not raised directly nor indirectly in all these cases. Therefore,

Judgment - W.P.lS26/199S

all those decisions relied upon by the counsel for the respondents are

distinguishable on facts.

54. It is not the case of the respondents that in India individuals /

law firms / companies are practising the profession of law in non-litigious

matters without being enrolled as advocates under the 1961 Act. It is not

even the case of the respondents that in the countries in which their head

office as well as their branch offices are situated, persons are allowed to

practice the profession of law in non-litigious matters without being

subjected to the control of any authority. In these circumstances, when the

Parliament has enacted the 1961Act to regulate the persons practising the

profession of law, it would not be correct to hold that the 1961 Act is

restricted to the persons practising in litigious matters and that the said Act

does not apply to persons practising in non litigious matters. There is no

reason to hold that in India the practise in non litigious matters is

unregulated.

55. It was contended by the counsel for Union of India that if it is

held that the 1961Act applies to persons practising in non-litigious matters,

then no bureaucrat would be able to draft or give any opinion in non-litigious

matters without being enrolled as an advocate. There is no merit in the

above argument, because, there is a distinction between a bureaucrat

drafting or giving opinion, during the course of his employment and a law

firm or an advocate drafting or giving opinion to the clients on professional

basis. Moreover, a bureaucrat drafting documents or giving opinion is

answerable to his superiors, whereas, a law firm or an individual engaged in


non litigious matters, that is, drafting documents / giving opinion or rendering

any other legal assistance are answerable to none. To avoid such anomaly,

the 1961 Act has been enacted so as to cover all persons practising the

profession of law be it in litigious matters or in non-litigious matterswithin the

purview of the 1961Act.

56. The argument that the 1961 Act and the Bar Councils

constituted thereunder have limited role to play has been time and again

negatived by the Apex Court. Recently, the Apex Court in the case of Bar

Council of India Vis. Board of Management, Dayanand College of Law

reported in (2007) 2 SCC 202 held thus:-

" It may not be correct to say that the Bar Council of India istotally unconcerned with the legal education, though primarilylegal education may also be within the province of theuniversities. But, as the apex professional body, the BarCouncil of India is concerned with the standards of the legalprofession and the equipment of those who seek entry into thatprofession. The Bar Council of India is also thus concernedwith the legal education in the country. Therefore, instead oftaking a pendantic view of the situation, the State Governmentand the recommending authority are expected to ensure thatthe requirement set down by the Bar Council of India is alsocomplied with. "

Thus, when efforts are being made to see that the legal profession

stand tall in this fast changing world, it would be improper to hold that the

1961 Act and the Bar Council constituted thereunder have limited role to

play in the field relating to practising the profession of law.

57. It is not in dispute that once a person is enrolled as an

advocate, he is entitled to practise the profession of law in litigious matters


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

----- --


litigious matters would be governed by the 1961 Act and the Bar Councils

framed thereunder, apart from the powers of the Court to take appropriate

action against advocateswho are found guilty of professional misconduct.

60. For all the aforesaid reasons, we hold that in the facts of the

present case, the RBI was not justified in granting permission to the foreign

law firms to open liaison offices in India under Section 29 of the 1973 Act.

We further hold that the expressions I to practise the profession of law' in

section 29 of the 1961Act is wide enough to cover the persons practising in

litigious matters as well as persons practising in non litigious matters and,

therefore, to practise in non litigious matters in India, the respondent Nos.12

to 14 were bound to follow the provisions contained in the 1961 Act. The

petition is disposed of accordinglywith no order as to costs.

Chief Justice

J.P. Devadhar, J.


[SCRf Order XXII Rule 3(1) (a)]


SPECIAL LEAVE PETITION (CIVIL) NO. OF 2015

(Arising from impugned final judgment and common order dated 16December 2009 passed by the Hon'ble High Court of Judicature atBombay in Writ Petition (C) No. 1526 of 1995).

IN THEMAnER OF Positionof Parties

In the In this

High Court Court

Global Indian LawyersA Society registered under theSocietiesRegistration Act,Having its RegisteredOffice atB-4/8, Safdarjung Enclave,New Delhi- 110029Through Secretary NOTA PARTY PETITIONER

VERSUS

1. Bar Council of India, established underthe provisions of the AdvocatesAct 1961,and having its office at 21 RouseAvenue,Deendayal UpadhyayaMarg,New Delhi - 110 002. RespondentNo.1 RespondentNo.1

2. Bar Council of the State of Maharashtraand Goa having its Office at High CourtExtension, Bombay - 400 032.

RespondentNo.2 RespondentNo.2

3. Bar Council of the State of Delhi, havingits address at High Court Building,New Delhi - 110 003. RespondentNO.3 RespondentNO.3

4. Bombay Incorporated Law Society, havingits office at High Court New Building, NorthWing, Bombay - 400 001.

RespondentNo.4 RespondentNo.4

41.~

5. Bar Association of the Supreme Court of.... India, having its office at Supreme Courtof India, Tilak Marg, New Delhi - 110 001.

Respondent No. 5 Respondent No.5

6. Bar Association of India, having its officeat 93, Lawyers Chambers, Supreme Courtof India, Tilak Marg, New Delhi - 110 001.

Respondent NO.6 Respondent No. 67. Union of India,

Through Secretary Department of Home,North Block, New Delhi 110001.

Respondent No. 7 Respondent No. 7

8. Reserve Bank of India, being a bodyconstituted under the provisions of theReserve Bank Act, 1934 having itsprincipal office at Horniman Circle,Bombay - 400023.


9. Directorate of Enforcement, Reserve Bankof India, having its office at JanmabhoomiChambers, New Marine Lines, Bombay.

Respondent No. 9 Respondent NO.9

10. Central Board of Direct Taxes, Ministryof Finance, North Block, New Delhi.


11. Chief Commissioner of Income Tax,Aaykar Bhavan, New Marine Lines, Bombay

Respondent No. 11 Respondent No. 1112. White & Case, a firm of lawyers having

its head office at 1155 Avenue of theAmericans, New York, New York 10036,United States of America and with officesat the Nirmal Building, Nariman POint,Mumbai - 400 021.


13. Chadbourne & Parke, a law firm havingits head office at Rockefeller Plaza, NewYork, New York 11012-0127, United Statesof America and with offices at Hotel MauryaSheraton, new Delhi and/or at A-168,Anand Niketan, New Delhi - 110 021.


14. Ashurst Morris Crisp having its principaloffice at Broadwalla House,S, Apollo Street,London EC 2A- 2HA and with offices at6, Aurangazeb Road, D-202 Chanakyapuri,New Delhi - 110 011 India


I.•I. 15. Society of India Law Firms,

5-454, Greater Kailash,Part - II,New Delhi 110048.

RespondentNo. 15 RespondentNo. 15

16. LAWYERSCOLLECTIVE,a Society registeredUnder the SocietiesRegistrationAct and underThe Bombay PublicTrusts act, having its officeAt 4th Floor, Jalaram Jyot, 63, Janmabhoomi Marg,Fort, Bombay - 400 001 (India)

Petitioner No. 1 RespondentNo. 16(All are Contesting Respondents)

TO

THEHON'BLETHECHIEFJUSTICE

ANDHISCOMPANIONJUDGESOF

THESUPREMECOURTOF INDIA

HUMBLE PETITION OF THEPETITIONERABOVENAMED

MOSTRESPECTFULLYSHOWETH:

1. The Petitioner seeks leave to assail the impugned Judgment and final order

dated 16 December 2009 passed by the Hon'ble High Court of Judicature at

Bombay in Writ Petition (C) No. 1526 of 1995 by way of a Special Leave

Petition under Article 136 of the Constitution of India. The Petitioner is

aggrieved by the impugned order whereunder the Hon'ble High Court has

erroneously held that to practice the profession of law in India, a foreign law

firm has to fulfill the qualification of being enrolled as advocates under the

AdvocatesAct, 1961.

lA. It is submitted that no Letter Patents Appeal lies against the impugned

Judgment and final order dated 16 December 2009 passed by the Hon'ble High

Court of Judicature at Bombay in Writ Petition (C) No. 1526 of 1995.

2. QUESTIONS OF LAW:

The following substantial questions of law arise for due consideration of

this Hon'ble Court:-

A. Whether there is any provision under the Advocates Act, 1961

and/or the Bar Council of India Rules whereby a 'Law Firm' is

required to be registered for the purposes of practicing the

profession of law in India or does the Advocates Act, 1961 only

regulate the individual lawyer?

B. Whether there is any restriction under the Advocates Act 1961

which restrictions an appropriately qualified Indian lawyer and/or

an Indian citizen, who is also appropriately qualified in a foreign

jurisdiction, to practice both Indian law as well as non-Indian law

of the jurisdiction where the person is so qualified?

C. Whether there is any restriction under the provisions of the

Advocates Act, 1961 and/or the Bar Council of India Rules

whereby a Foreign Law Firm is prohibited from establishing an

office in India?

D. Whether there is any bar under the Advocates Act, 1961 and/or

the Bar Council of India Rules which prohibit the foreign law firms

and foreign qualified lawyers from practicing foreign law on

permanent basis in India?

E. Whether there is any bar under the Advocates Act, 1961 and/or

the Bar Council of India Rules which prohibit the foreign law firms

from establishing their offices in India and employing/retaining

Indian qualified lawyers for practicing Indian Law in India?

F. Whether the impugned judgment and order of the Hon'ble High

Court of Bombay is anti-thesis to the concept of reciprocity

contained under the provisions of Section 47 of the Advocates Act,

1961 and hence against the public policy of India?

G. Whether the impugned judgment and order of the Hon'ble High

Court of Bombay is premises on a specious reasoning by assuming


unregulated?

~-.H. Whether the Hon'ble High Court was justified in holding that the foreign

lawyers cannot come to India and conduct non-litigious practice in the field

of foreign law and/or on international legal issues, in light of the aims and

objects of the International Commercial Arbitration introduced in the

Arbitration and Conciliation Act, 1996 as also in the national interest of

India vide its policy to internationalize the fraternity of law in India?

3. DECLARATIONIN TERMSOFRULE3(2) :

The Petitioners state that no other petition seeking leave to appeal has

been filed by them against the impugned judgment and order.

4. DECLARATIONIN TERMSOFRULE5:

That Annexures P-1 to P-2 produced alongwith the Special Leave Petition

is true copies of the pleadings/documents which formed part of the

records of the case in the Court/Tribunal below against whose order the

leave to appeal is sought for in this petition.

5. GROUNDS:

Leaveto Appeal is sought for on the following amongst other grounds:

5.1. It is submitted that one of the most effective methods to provide

international exposure to the lawyers in India is the entry of foreign law

firms into India. The Petitioner is thereby aggrieved by the findings of

the impugned judgment of the Hon'ble High Court of Bombay which

erroneously places a qualification on foreign firms to register as

advocates under the Advocates Act, when there is the no such

restriction under the Advocates Act or under the Bar Council of India

Rulesto prohibit a foreign law firm from establishing an office in India.

5.2. Because the Hon'ble High Court of Bombay vide its impugned

order while upholding the bar to Foreign Law Firms, not

registered under the Advocates Act, 1961 from practicing in

India has proceededon an incorrect reading of the concept of a

law firm. That a law firm is only a structure, sometimes in the

form of partnership, or a LLP, or a sole proprietorship under

whose umbrella each advocate, individually qualified, acts as a

lawyer. Collectively, a group of lawyers form a law firm and

operate under that banner. It is each individual lawyer who is

independently regulated. A law firm is only the umbrella under

which they act.

5.3. It is further respectfully submitted that under the provisions of

Advocates Act, 1961, it is only the individual lawyers who are

required to be registered and not the law firms in India. Such

registered lawyers collectively form a law firm, which is only a

structure, sometimes in the form of partnership, an LLP, or a

sole proprietorship. Hence, the necessary corollary to this

requirement would entail that even in respect of a foreign law

firm, it is not the 'firm' which is required to be registered under

the Advocates Act (as has been held by the High Court of

Bombay), but the individual lawyers of that firm seeking to

practice Indian law who are mandated to enroll under the

provisions of the AdvocatesAct.

5.4. As such, law firms, whether they comprise of Indian qualified

lawyers and/or foreign qualified lawyers are based on a similar

model: it is the individual lawyers who are the qualified

persons. Therefore, a blanket restriction on foreign law firms to

establish offices in India under the pretext that they cannot be

enrolled as advocates under the Advocates Act is wholly

misconceived.

5.5. Because the Courts have not delved upon the requirements

under the Advocates Act and the BCI Rules for registration of

lawyers based upon the demarcation of the practice of the

profession of law into the practice of Indian law and the

practice of foreign law. That the Courts have also not

considered the possibility of whether a foreign law firm could

have Indian qualified lawyers join the firm and practice Indian

law, whereas the foreign lawyers could practice only foreign

law.

5.6. It is submitted that the practice of profession of law can be

demarcated into practice of Indian law and the practice of

foreign law. The AdvocatesAct as well as the BCI Rules ("BCI

Rules"), do not prohibit the practice of foreign law within

India. The Advocates Act and the BCI Rules only apply to the

practice of Indian law, except in so far as set out at paragraphs

24 to 26 hereinbelow. It does not regulate the profession of

foreign law. The profession of foreign law is governed by laws

of each foreign state.

5.7. Further, it is submitted that the Courts below have graveiy

faiied to consider an instance where an appropriately qualified

Indian lawyer and/or an Indian citizen, who is also

appropriately qualified in a foreign jurisdiction, is entitled to

practice both Indian law as well as non-Indian law of the

jurisdiction where the person is so qualified. That a contrary

reading of the provisions of AdvocatesAct, 1961 and/or the Bar

Council Rules would amount to a violation of the Freedom to

practice any profession, or to carryon any occupation, trade or

business as guaranteed under Article 19(1)(g) of the

Constitution of India.

5.B. In relation to the practice of Indian law, the Petitioner states

that the practice of the profession of law in India is governed by

the provisions of the AdvocatesAct as well as by the BCI Rules.

Section 29 of the Act stipulates "advocates" as the only

recognized class of persons entitled to practice law. An

"advocate" has been defined under Section 2 (a) of the Act to

mean "an advocate entered in any roll under the provisions ofthis Act."

5.9. The relevant provisions are set out below:

"24. Persons who may be admitted as advocates on a Stateroll.- (1) Subject to the provisions of this Act, and the rules madethereunder, a person shall be qualified to be admitted as anadvocate on a State roll, if he fulfills the following conditions,namely:-

(a) he is a citizen of India:

Provided that subject to the other provisions contained in this Act,a national of any other country may be admitted as an advocateon a State roll, if citizens of India, duly qualified, are permitted topractise law in that other country;

(b) he has completed the age of twenty-one years;

(c) he has obtained a degree in law-

(i) before the 12th day of March, 1967, from any University inthe territory of India; or

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

29. Advocates to be the only recognized class of personsentitled to practice law.-Subject to the provisions of this Act andany rules made thereunder, there shall, as from the appointedday, be only one class of persons entitled to practice theprofession of law, namely, advocates.

30. Right of advocates to practise.-Subject to provisions of thisAct, every advocate whose name is entered in the State roll shallbe entitled as of right to practise throughout the territories towhich this Act extends,-

(i) in all courts including the SupremeCourt;

(ii) before any tribunal or person legally authorised to takeevidence; and

(iii) before any other authority or person before whom suchadvocate is by or under any law for the time being in forceentitled to practise.

33. Advocates alone entitled to practise. - Except as otherwiseprovided in this Act or in any other law for the time being in force,no person shall, on or after the appointed day, be entitled topractise in any Court or before any authority or person unless heis enrolled as an advocate under this Act."

5.10. The Petitioner submits that a reading of Sections 24, 29, 30 and

33 clearly shows that it deals with persons entitled to practice

the profession of Indian law. It does not restrict a person or a

duly qualified advocate from practicing 'a foreign law, if that

person is also duly qualified under the rules and regulations

governing the practice of such foreign law. It is respectfully

submitted that any other reading would be contrary to Article

19(1)(g) of the Constitution of India because that would

amount to an unreasonable restriction on the citizens of India

from being permitted to qualify to practice under a foreign law

and not be able to conduct that practice while in India.

5.11. The Petitioner further states that the legal profession is

regulated by the State Bar Councils (the "SBes") established

under Section 3 of the AdvocatesAct, as well as the Bar Council

of India (the "Bel") established under Section 4 of the

Advocates Act. Both these bodies, i.e. the SBCsas well as the

BCI have clearly demarcated responsibilities enumerated under

Sections 6 and 7 of the Advocates Act respectively. Under

Section 6, the SBCs are responsible for, inter alia, admitting

advocates into its rolls as well as preparing and maintaining the

rolls. Under Section 7 of the Advocates Act, the BCI lays down

the standards of professional conduct and etiquette for

advocates, laying down procedure to be followed by the

disciplinary committee, supervise and control the SBCs,etc. It

is submitted that the BCI Rules also so not restrict the practice

of foreign law by duly qualified lawyers including citizen of

India, as that would be contrary to the provisions of the

AdvocatesAct and/or unconstitutional.

5.12. In fact within a foreign law firm, as is also the case with a

domestic law firm, it can only be a duly Indian qualified

advocate who would be entitled to practice Indian law.

Therefore, if a foreign law firm intends to practice Indian law, it

must necessarily eng~ge an Indian advocate for providing the

service in relation to Indian law. Moreover, apart from the

practice of Indian law, the foreign law firm would also be

entitled to practice foreign law through its foreign law qualified

lawyers. The Petitioner respectfully submits that there is no

prohibition either under the Advocates Act or under the BCI

Rules on such foreign qualified lawyers from practicing foreign

law and as such, the blanket prohibition on entry of such firms

in India is ante-thesis to the objectives of developing India on

the lines of a desired destination for conducting International

Commercial Arbitrations, and enhancing its economic growth,

where the economic growth is always intertwined to the growth

of the legal profession, which is the backbone of every

economy.

5.13. It is submitted that like the other professional service sectors,

India is currently possessedwith a vast amount of skilled legal

practitioners. However, their exposure to international best

practices in the legal profession is currently being curtailed

and/or denied on the basis of a perception amongst certain

members of the legal fraternity that internationalizing the legal

profession in India would be detrimental to the Indian legal

profession. The Petitioner respectfully states that nothing could

be further from the truth: internationalizing the legal profession

in India will only assist in giving Indian lawyers far more

opportunities within the legal profession than those available

today and allow India to adopt international best practices in

the field of law. For example, it is respectfully submitted that

with the coming in of the large accountancy firms like KMPG,

Ernst & Young, Delloitte etc. the chartered accountancy

profession has expanded manifold in India and young Indian

accountants now have the opportunity of working in

multinational accountancy practices. The Petitioner respectfully

submits that there is no reason why the same would not

happen to the legal profession in India, if globalization of the

legal profession is allowed to take place in India.

5.14. In fact, it is respectfully submitted that the Union Economic

Survey 2012-13, which was published as a part of the Union

Budget 2012-13 reported that the legal services in India has

been growing at a steady rate of 8.2 per cent in the last few

years. It is also to be noted that India is home to the second

largest number of registered lawyers, second only to the United

States of America. The Union EconomicSurvey further notes:

"Chapter X

Legal Services

10.49 Legal services have been growing at a steady rate of8.2 per cent in each of the years from 2005-6 to 2011-12.The Indian legal profession today consists of approximately1.2 million registered advocates, around 950 law schools,and approximately 4 to 5 lakh law students across thecountry. Every year, approximately 60,000-70,000 lawgraduates join the legal profession in India. India is ranked45, with a score of 4.5, in terms of judicial independencebythe Global Competitiveness Report 2012-13, animprovement from 51st rank in 2011-12 ....

10.50 The practice of law has however changed drasticallyin the past few decades due to liberalization and associatedeconomic growth in India. With industrialization and FDIinflows, the corporate legal sector in India has beenwitnessing tremendous growth, as also legal processoutsourcing (LPO). In India the practice of law is governedby the Advocates Act of 1961. Under this Act, foreign lawfirms are not allowed to engage in practice of law in India.Many foreign legal firms have set up liaison offices(currently permitted under the law), while a few haveestablished referral relationships with Indian firms. Giventhat India has benefited from opening up to foreigncompetition in many other areas, and given that Indianlawyers are offering services across the world (see below),India should explore allowing foreign law firms greateraccessto the Indian market."

5.15. In fact, it is respectfully submitted that the Union Economic

Survey 2013-14, which was published as a part of the Union

Budget 2013-14 reported that the legal services in India has

been growing at a steady rate of 8.2 per cent in the last few

years. It is also to be noted that India is home to the second

largest number of registered lawyers, second only to the United

States of America. The Union EconomicSurvey further notes:

"Chapter X

Legal Services

10.39 Legal services have been growing at a steady rate of 8.2percent in each of the years from 2005-06 to 2012-13. India isranked 40, with a score of 4.7, in terms of judicialindependence by the Global Competitiveness Report 2013-14,an improvement from 45th rank in 2012-13. As regardsefficiency of the legal framework in settling disputes, India isranked 62nd, with a score of 3.8, a decline of three positionsfrom 59th rank a year before. India is ranked 48th when itcomes to the efficiency of the legal framework in chaliengingregulations, with a score of 3.8, an improvement from 52ndposition in the previous year.

10.40 The National Legal Services Authority (NALSA)constituted under the Legal Services Authorities Act 1987monitors and evaluates implementation of legal aidprogrammes and lays down policies and principles for makinglegal services available under the Act. To familiarize lawstudents of the country with the problems faced by the massesignorant about their rights and remedies under the law, theLegal Services Clinic in Unlversitv, Law Colleges and otherInstitutions schemewas started in 2013. During 2013-14 morethan 22.23 lakh persons have benefited through legal aidservices in the country. Out of them, about 29,000 personsbelong to the scheduled castes, 24,844 to the scheduled tribes,more than 58,883 are women, and 8,134 are children. Duringthis period, more than 1,13,838 Lok Adalats have beenorganized which settled more than 90.14 lakh cases including1.17 lakh motor accident claim cases."

5.16. That having regard to the above submission, it is evident that

there is an impending need expressed by the Central

Government as well to take appropriate measures to globalize

the legal profession and tap into the international market. Such

a move will only build the capacity of the legal practitioners in

India, preparing them for an integrated future. Further, as

legal services and economic development go hand in hand, it is

submitted that with India's marches towards becoming a global

economy, a necessarycorollary would be to globalize the legal

profession so as to give Indian lawyers the best available

opportunities in the legal profession in their own motherland.

5.17. Further, the High Court in its impugned judgment has held that

"practice of the profession of law" under Sections 29 and 30 of

the Advocates Act includes litigious, i.e. appearances and filing

documents before the Courts as well as non-litigious, i.e.

advisory practice in India. The basis of the judgment for

disallowing a foreign law firm from practicing is based on the

erroneous premise that a foreign law firm is not registered

under the Advocates Act. The Petitioner respectfully submits

that such reasoning is based on the incorrect premise and on

an incorrect appreciation of what constitutes a law firm,

because it is always only the individual lawyers who are

regulated by the Advocates Act and the BCI Rules and not law

firm.

5.18. It is respectfully submitted that the Hon'ble Madras High Court,

in the impugned judgment, has examined the practice of the

profession of law from the perspective of Indian law and foreign

law as being two facets of the profession. The Hon'ble High

Court has held:

"59. As noticed above, Section 2(a) of the Advocates Act defines'Advocate' to mean an Advocate entered in any roll under theprovisions of the Act. In terms of Section 17(1) of the Act, everyState Bar Council shall prepare and maintain a roll of Advocates,in which shall be entered the names and addresses of - (a) allpersons who were entered as an Advocate on the roll of any HighCourt under the Indian Bar Council Act, 1926, immediately beforethe appointed date, and (b) all other persons admitted to beAdvocates on the roll of the State Bar Council under the Act on orafter the appointed date. In terms of Section 24(1) of the Act,subject to the provisions of the Act and the Rules madethereunder, a person shall be qualified to be admitted as anAdvocate on a state roll if he fulfils the conditions - (a) a citizen ofIndia, (b) has completed 21 years of age and (c) obtained adegree in Law. The Proviso to Section 24(1)(a) states that subjectto the other provisions of the Act, a National of any other countrymay be admitted as an Advocate on a State roll, if a citizen ofIndia, duly qualified is permitted to practice law in that othercountry. In terms of Section 47(1) of the Act, where any countryspecified by the Central Government by Notification preventscitizens of India practicing the profession of Law or subjects themto unfair discrimination in that country, no subject of any suchcountry shall be entitled to practice the profession of Law in India.In terms of sub-section (2) of Section 47, subject to the provisionof sub-section (1), the Bar Council of India may prescribeconditions, if any, subject to which foreign qualifications in lawobtained by persons other than citizens of India shall berecognized for the purpose of admission as an Advocate under theAct. Thus, Section 47 deals with reciprocity. As per the Statementof Objects and Reasons of the Advocates Act, it was a law enactedto provide one class of legal practitioners, specifying the academicand professional qualifications necessary for enrolling as apractitioner of Indian Law, 'and only Indian citizens with a Law

Degree from a recognized Indian University could enroll asAdvocates under the Act. The exceptions are provided under theProviso to Section 24(1)(a), Section 24(1)( c)(iv) and Section47(2). In the light of the Scheme of the Act, if a lawyer from aForeign Law Firm visits India to advice his client on mattersrelating to the law which is applicable to their country, for whichpurpose he 'flies in and flies out' of India, there could not be a barfor such services rendered by such Foreign Law Firm/ForeignLawyer.

60. We are persuaded to observe so, since there may be severaltransactions in which an Indian company or a person of Indianorigin may enter into transaction with a foreign company, and thelaws applicable to such transaction are the laws of the said foreigncountry. There may be a necessity to seek legal advice on themanner in which the Foreign Law would be applied to the saidtransaction, for which purpose if a lawyer from a Foreign Law Firmis permitted to fly into India and fly out advising their client on theForeign Law, it cannot be stated to be prohibited. The corollarywould be that such Foreign Law Firm shall not be entitled to doany form of practice of Indian Law either directly or indirectly. Theprivate Respondents herein, namely the Foreign Law Firms, haveaccepted that there is express prohibition for a Foreign Lawyer ora Foreign Law Firm to practice Indian Law. It is pointed out that ifan interpretation is given to prohibit practice of Foreign Law by aForeign Law Firms within India, it would result in a manifestlyabsurd situation wherein only Indian citizens with Indian Lawdegree who are enrolled as an Advocate under the Advocates Actcould practice Foreign Law, when the fact remains that ForeignLaws are not taught at graduate level in Indian Law schools,except Comparative Law Degree Courses at the Master's level."

5.19. The Petitioner respectfully states and submits that it is evident

that the Hon'ble High Court of Bombay and the Hon'ble High

Court of Madras did not go into the question of whether a

foreign law firm could have Indian qualified lawyers join the

firm and practice Indian law, as it was dealing with a question

of whether foreign qualified lawyers practicing foreign law could

practice Indian law. The Petitioner is thus setting out the

position comprehensively.

5.20. Because the concerns that foreign lawyers and foreign law

firms, if allowed to set up, would be unregulated, are merely a

red herring. In this regard, the Petitioner respectfully states

that (1) the Advocates Act is already sufficiently equipped to

regulate foreign lawyers practicing in India even if they are not

qualified in India, and (2) these lawyers are regulated by their

respective Bar Associations in their area of practice. The

regulations that govern these lawyers who would practice

foreign law in India, without being qualified as an advocate for

the practice of Indian law, are set out below.

5.21. Because every country has its own independent set of rules to

regulate the practice of the profession of law. In fact, in New

York, and in the United Kingdom, the Bar Council Rules

specifically provide that in case the dually qualified lawyer opts

to practice that law in another country, he would be required to

adhere to the local bar council regulations in addition to those

in his home country. For example, an Indian citizen and/or a

person qualified under the Advocates Act who is called to the

Bar in India as well as in the UK, is permitted to carry on

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

Kingdom, the General Council of the Bar of England and Wales

(also known as the England and Wales Bar Council), though its

independent Bar Standards Board, prescribes the Code of

Conduct to the followed by all members of the England & Wales

Bar. The Code of Conduct as applicable to the England & Wales

Barristers sets out, in rather express terms, the duties of a

barrister, especially when it comes to international work. The

relevant provision of the Code of Conduct is set out below:

"Part I - Preliminary

General Purpose of the Code

106. Subject to the International Practice Rules (reproduced inAnnex A) this Code applies to International work and whether abarrister is practising in England and Wales or elsewhere.

Annex A - The International Practicing Rules

1. "International work" means practice as a barrister:

(a) where the work (i) relates to matters or proceedingsessentially arising taking place or contemplated outside Englandand Wales and (ii) is to be substantially performed outsideEngland and Wales; or

(b) where the lay client carries on business or usually residesoutside England and Wales provided that:

(i) the instructions emanate from outside England and Wales; and

(ii) the work does not involve the barrister in providing advocacyservices.

2. In connection with any International work, a barrister mustcomply with any applicable rule of conduct prescribed bythe law or by any national or local Bar of (a) the placewhere the work is or is to be performed (b) the place whereany proceedings or matters to which the work relates are takingplace or contemplated, unless such rule is inconsistent with anyrequirement of Part III of this Code ("Fundamental Principles").[emphasis supplied]

4. In relation to International work substantially performed outsideEnglandand Wales:

(e) NotWithstanding paragraph 201, a barrister who is practisingas a foreign lawyer and who does not:

(i) give advice on English law, or

(ii) supply legal services in connection with any proceedings orcontemplated proceedings in Englandand Wales (other than as anexpert witness on foreign law),

shall not be treated as a practising barrister for the purposes ofthe Code.

6. A practising barrister who supplies legal services as a barrister(other than to his employer) outside England and Wales must becovered (and in the case of an employed barrister his employermust be covered) by insurance against claims for professionalnegligence arising out of the supply of his services in an amountnot less than the minimum level of insurance cover required bylaw or by the rules of the Bar in the place where the services aresupplied or, if there is no such minimum, the current minimumsum insured for barristers practising in England and Wales.

7. A barrister who solicits work in any jurisdiction outside Englandand Wales must not do so in a manner which would be prohibitedif the barrister were a member of the local Bar."

5.22. Similarly, an Indian citizen and/or a person qualified under the

Advocates Act who is also qualified to the Bar in New York is

eligible to practice New York law outside New York. In a case

where assuming an Indian citizen who is a New York qualified

lawyer and chooses to practice New York law in India, he would

be governed by both the New York regulations as well as the

BCI regulations. Under the New York Rules of Professional

Conduct, it is stated:

"RULE 8.5:

DISCIPLINARY AUTHORITY AND CHOICE OF LAW

(a) A lawyer admitted to practice in this state is subject to thedisciplinary authority of this state, regardless of where thelawyer's conduct occurs. A lawyer may be subject to thedisciplinary authority of both this state and another jurisdictionwhere the lawyer is admitted for the same conduct. [emphasissupplied]

(b) In any exercise of the disciplinary authority of this state,the rules of professional conduct to be applied shall be asfollows:

(1) For conduct in connection with a proceeding in a courtbefore which a lawyer has been admitted to practice (eithergenerally or for purposes of that proceeding), the rules to beapplied shall be the rules of the jurisdiction in which the courtsits, unless the rules of the court provide otherwise; and

(2) For any other conduct:

(i) If the lawyer is licensed to practice only in this state, therules to be applied shall be the rules of this state, and

(ii) If the lawyer is licensed to practice in this state and anotherjurisdiction, the rules to be applied shall be the rules of theadmitting jurisdiction in which the lawyer principally practices;provided, however, that if particular conduct clearly has itspredominant effect in another jurisdiction in which the lawyeris licensed to practice, the rules of that jurisdiction shall beapplied to that conduct."

5.23. Therefore, an Indian citizen and/or a person qualified under the

Advocates Act who has an additional qualification from a foreign

jurisdiction, for example the United Kingdom or New York,

ought to be allowed to practice not just Indian law while in

India but also English law/New York law (as the case may be)

in accordance with the English and/or New York Rules. In such

cases, the lawyer would be regulated by both BCI rules as well

as the regulations applicable to registered lawyers in the foreign

jurisdiction.

5.24. It is also respectfully submitted that all these jurisdictions

across the world have adequate provisions similar to the ones

under the Advocates Act to regulate the conduct of legal

professionals, and the procedure for any disciplinary actions to

be initiated in case of any complaints against the lawyer. As

such, to suggest that these lawyers would not be regulated is

incorrect.

5.25. Moreover, it is pertinent to note that most of the major

jurisdictions across the world already require their lawyers to be

bound by the code of conduct of the foreign jurisdiction if they

are working out of that country. Therefore, if an England and

Wales Barrister or a New York lawyer were to provide legal

services in India, even if it pertained to English law and New

York law respectively, there is still an obligation upon them

emanating from their Bar Councils to adhere to the code of

conduct prescribed for lawyers in India. Therefore, it is wrong

to say that these foreign lawyers will act without being

regulated.

5.26. The Petitioner, in the interest of brevity, further craves leave to

bring forth the regulations in other major countries at the time

of the hearing.

5.27. Because the impugned judgment is once again premises on a

wholly misconceived footing that nationality is a primary

criterion for practice of law in India. Contrary to said notion, it

is submitted that the Advocates Act does not restrict foreign

nationals duly qualified, from practicing Indian law but also

prescribes certain prerequisites for permitting such persons to

be called to the Bar in India.

5.28. In this regard, three provisions of the AdvocatesAct, when read

together provide the basis for permitting foreign nationals to

practice Indian law in India. These are Section 24(1)(a),

Section 24(1)(c)(iv) and Section47, all of which are reproduced

below:

"24. Personswho may be admitted as advocates on a State roll.(1) Subject to the provisions of this Act, and the rules madethereunder, a person shall be qualified to be admitted as anadvocate on a State roll, if he fulfills the following conditions,namely:-

60

(a) he is a citizen of India:

Provided that subject to the other provisions contained in this Act,a national of any other country may be admitted as an advocateon a State roll, if citizens of India, duly qualified, are permitted topractise law in that other country;

(c) he has obtained a degree in law-

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

47. Reciprocity - (1) Where any country, specified by the CentralGovernment in this behalf by notification in the Official Gazette,prevents citizens of India from practising the profession of law orsubjects them to unfair discrimination in that country, no subjectof any such country shall be entitled to practise the profession oflaw in India.

(2) Subject to the provisions of sub-section (1), the Bar Council ofIndia may prescribed the conditions, if any, subject to whichforeign qualifications in law obtained by persons other thancitizens of India shall be recognised for the purpose of admissionas an advocate under this Act."

5.29. From a bare perusal of the Advocates Act, it is evident that the

Advocates Act does not proscribe foreign citizenship as a bar on

enrolling as an advocate. In fact the Advocates Act expressly

permits foreign nationals who have obtained degrees outside

India to be enrolled with the SBCs, subject to conditions laid

down by the BCI. The BCI Rules as they stand, have not

imposed any restriction on such enrollment.

615.30. The Petitioner further states and submits that the provisions of

the Advocates Act are in fact aligned with the international

standards on the same subject. Typically, citizenship of a

person is not a factor that determines whether a person may be

enrolled as an advocate or not. The Petitioner submits that the

determining factor is the qualification necessaryfor the practice

of law, which is prescribed by the domestic legislations in each

country. This is why many Indian citizens are being called to

the Bar in various jurisdictions across the world after obtaining

the necessaryqualifications prescribed therein.

5.31. Because the impugned order is anti-thesis to the concept of

reciprocity contained under the provisions of Section 47 of the

Advocates Act, 1961 and hence against the public policy of

India. For that since a number of foreign countries permit a

person qualified under the AdvocatesAct to practice Indian law

outside of India, there has been a brain drain of Indian citizens,

many of whom have chosen to practice outside India. Indeed,

the Petitioner states that there are a number of Indian citizens

who, either on the basis of their graduation degree obtained in

India, or on the basis of them being called to the Indian Bar,

currently hold dual qualifications most notably in countries such

as United States as well as the United Kingdom. However, if

foreign law firms could establish their offices in India, such

Indian citizens would have the option of returning back and

would be able to provide the same services which they provide

outside India.

5.32. That in a number of countries, foreign law firms i.e. firms

practicing the law other than the law of the home state are

allowed to practice. This includes law firms who practice Indian

law, English law, laws of the United States of America etc.

outside their own home jurisdiction. Countries such as the

United Kingdom, the United Stales of America, Australia,

Canada, Singapore, Hong Kong, etc. to name a few, permit

Indian qualified lawyers to establish a practice in those

countries which enables them to practice Indian law. It is

respectfully submitted that many such Indian lawyers and law

firms have done exactly that.

~ IcountryNo .

1. Australia

3. China

Legal services allowed tobe practiced

All legal services,exceptChinese law

Indian law and International N/A

r -r~~----+-La-w------------------+_---------------- i2. Canada Advisory serviceson Indian No restrictions on -I

I

law and third country law independent practice.(except Canadian law) andInternational Law

I

Commercial presenceIrestricted to representative Ioffice only I

I----~

II

f------+------+--------------t-----------------__jMandatory to establish a full I

time presencefor the I

practice of law. Ii

Advisory serviceson Indian---1'-c-o-m-m--e-rc-ia-l-p-re-s--e-n-ce--~---1I laws, International law and I through a corporationoffshore corporation laws of incorporated in the Federal

I

I III---~EuropeanCommunity

5.

Malaysia

Restrictions on practice

If practice through theestablishment of a firm,then the fi rm has to beconstituted as a partnership.

Japan

6.

N/AIndian Law and PublicInternational Law

All legal services, includingJapaneselaw.

IL__-'- lMa,aY:~ J_T_e_rn~~_of_La~ba~n.Ii

III

_______ J

7. Nepal Indian law, International law Bar membership is requiredand Third Country law (except for appearance beforeNepaleseLaw) Courts

8. New All laws (including New N/AZealand Zealand law)

9. Singapore All laws (including Singapore Subject to obtaininglaw) necessary licensethat will

I be reviewed on a casetocase basis.

I

I10. South Africa All laws (including South No restrictions on the

African law) practice of foreign law.

South African law can bepracticed only by way of asole proprietorship.

11. Switzerland Indian Law, International Law N/Aand Third Country Law (exceptSwiss law)

I12. Thailand All laws (including Thai laws) If practice of law is throughIa company, then equity

participation can be up to I49% only.

13. Turkey Indian law, International Law Only Turkish nationals mayand Third Country Law (except appear before Courts, even

I Turkish law) if employed by a foreign lawfirm.

i

14. United All laws (including laws of Subject to obtaining the

Kingdom England & Wales) necessary qualification andlicense.

15.1 United All laws (including United Subject to the domesticStates law) regulations of various states

,

5.33. In this regard, the Petitioner also states that India as a country

loses out on economic benefit by not allowing such lawyers to

practice from India, as well as not allowing foreign lawyers to

practice their foreign laws in India for the purposes of servicing

the international requirements of Indian clients. Furthermore, it

is respectfully submitted that under the Advocates Act and the

BCI Rules, which regulate the practice of Indian law by

advocates enrolled across the various states in the country,

allows a person who has obtained his legal education from a

University outside of India, to also qualify as an advocate under

the AdvocatesAct.

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

nationals, who have obtained a degree from Universitiesoutside

India, may still be enrolled as an advocate in India to practice

Indian law, if the BCI recognizes the University where the law

graduate obtained his degree from.

5.35. Rule 37 of Part IV of the BCI Rules, titled Rules on Legal

Education recognizes the degree of a Foreign University

obtained by an Indian national.

"CHAPTERV - Recognitionof Degree in law of a Foreign University

37. Degree of a ForeignUniversity obtained by an Indian citizen

If an Indian national having attained the age of 21 years andobtains a degree in law from a Foreign University such a degree inlaw can be recognized for the purpose of enrolment on fulfillmentof following conditions:

(i) completed and obtained the degree in law after regularly

pursuing the course for a period not less than three years in case

the degree in law is obtained Bar Council of India after graduation

in any branch of knowledge or for a period of not less than five

years if admitted into the integrated course after passing +2 stage

in the higher secondary examination or its equivalent; and

(ii) the University is recognized by the Bar Council of India and

candidate concerned passes the examination conducted by the

Bar Council of India in substantive and procedural law subjects,

which are specifically needed to practice law in India and

prescribed by the Bar Council of India from time to time as given

in the schedule XIV. Provided that those who joined LL.B. course

in a recognized Foreign University prior to 21st February, 2005 the

date of notification in this regard by the Bar Council of India need

not seek for such examination, other aforesaid condition remain

same.

Provided the same privilege shall be also extended to Persons ofIndian Origin having double citizenship in India."

5.36. As on date, 90 Universities from 13 different countries have

been granted recognition by the BCI under Rule 39 of the Legal

Education Rules, 2008.

5.37. Therefore, a person may be an advocate under the Advocates

Act even if he has obtained his degree from outside India on

the basis of the BCI recognition to the University. The

Petitioner states that a degree obtained in a foreign university

------- - - -- - -

(,bmay also entitle that person to qualify as a lawyer in that

jurisdiction, which would facilitate that person to possessdual

qualification, one in India and one in the foreign jurisdiction. In

fact it is evident that it would be unconstitutional to suggest

that an Indian citizen who has duly obtained a law degree from

a foreign University and is thus duly qualified to practice Indian

law and the law of the foreign state, would be disallowed from

doing such a practice from India.

5.38. The Petitioner also respectfully submits that the Advocates Act

does not create a bar on Indian law firms from setting up

offices in a foreign jurisdiction. Notably, a number of Indian

law firms with Indian qualified lawyers, have today opened

offices in London, NewYork, Singapore, Paris, Munich, Brussels,

etc.

5.39. In light of the above, the Petitioner therefore respectfully

submits:

a) There is no restriction under the Advocates Act or under the

BCI Rules to prohibit a foreign law firm from establishing an

office in India;

b) The practice of Indian law by the foreign law firm will have

to be undertaken by an "advocate" duly qualified under the

AdvocatesAct and the BCI Rules;

c) The foreign law firm may also practice the profession of

foreign law through its foreign qualified lawyers from the

offices in India;

d) Indian citizens, with dual qualification under the Advocates

Act as well as from a foreign jurisdiction, are entitled under

the Advocates Act to practice not just Indian law but also

foreign law for which they are dually qualified (subject to the

rules governing their conduct under foreign law) from India;

and

e) Qualification as an advocate under the Advocates Act is not

limited to citizens of India: A non-citizen from another

country which allows Indian citizens to be called to their Bar

can be eligible to be qualified as an advocate in India so

long as that person meets the qualification criteria set out

under the AdvocatesAct and the BCI Rules.

5.40. The Petitioner's objectives since its inception has been to

promote, foster and develop international law in India. The

Petitioner is of the view that the stand of the BCI towards dual

qualified lawyers as well as only foreign qualified lawyers

(Indians or non-Indians) is limiting the exposure to international

law to the young lawyers of today in India. The Petition states

the deprivation of exposure to the young lawyers of today may

in fact leave the legal profession in India stagnant, and the

Indian lawyers may not be able to compete with their

international counter parts in the years to come.

6. GROUNDS FOR INTERIM RELIEF:

No interim relief is sought for at this stage.

7. MAIN PRAYER:

The Petitioner, therefore, prays that:

(A) Grant Special Leave to Appeal under Article 136 of the

Constitution of India against impugned Judgment and final order

dated 16 December 2009 passed by the Hon'ble High Court of

Judicature at Bombay in Writ Petition (C) No. 1526 of 1995;

(B) Passany other order and/or directions as this Hon'ble Court may

deem fit and proper.

8.INTERIM RELIEF:

No interim relief is sought for at this stage.

AND FOR THIS ACf OF KINDNESS THE PETITIONER SHALL AS IN

DUTY BOUND EVER PRAY.

DRAWN BY: FILED BY:

Nakul Dewan,

Jaikriti Jadeja,

Azal Khan

Advocates (Vikash Singh)

Advocate for the Petitioner

SETTLED BY

Mr. Harish N. Salve

Senior Advocate

New Delhi



SPECIAL LEAVE PETITION (CIVIL) NO. OF 2015

IN THE MATTER OF:

Global Indian Lawyers ... PETITIONERVERSUS

Bar Council of India & Ors ... RESPONDENTS

CERTIFICATE

Certified that the Special Leave Petition IS confined only to the

pleadings before the Court whose order is challenged and the other

documents relied upon in those proceedings. No additional facts,

documents or grounds have been taken therein or relied upon in the

Special Leave Petition. It is further certified that the copies of the

documents/Annexures attached to the Special Leave Petition are

necessary to answer the questions of law raised in the Petition. This

certificate is given on the basis of the instructions given by the

Petitioner/ person authorized by the Petitioners whose affidavit is filed in

support of the Special Leave Petition.

MR. VIKASH SINGHAdvocate for the Petitioner

New DelhiDated: j6 -O~ -'-o1,r

--- ----------- - - -


CIVIL APPELLATE JURISDICTIONSPECIAL LEAVE PETITION (CIVIL) NO. OF 2015

IN THE MATTER OF:

Global Indian Lawyers..... Petitioner

Versus

BAR COUNCIL OF INDIA & Ors ..... Respondents

AFFIDAVIT

I, Jaikriti Sinh Jadeja, 0/0 Shri Devendra Sinh Jadeja, Aged 28 years, working

at B-5/204, Safdarjung Enclave, New Delhi 110029, do hereby solemnly affirm

and state as under:

1. That I am the Secretary of the Petitioner in the above mentioned

Special Leave Petition and as such I am weJI conversant with the facts

and circumstances of the case and competent to swear the presentaffidavit.

2 That I have gone through a copy of the List of Dates from running

pages B to _p_ and a copy of the Special Leave Petition from

paragraphs 1 to ~ from running pages yo to 3J._Q_ and I state that

the contents thereof are true and correct to my knowledge.

3. That I have gone through copies of the interlocutory applications and

state that the contents thereof are true and correct to my knowledge.

4. That the annexures attached to the present Special Leave Petition are

true and correct copies of their respective originals.

VERIFICATION

Verified at N.'ZW .. ~~. on this .J.r..t~ day of March, 2015 that the contents of

the above affidavit are correct and true to the best of my knowledge and belief

nothing material has been concealed therefrom.

\ \

APPENDIX

ADVOCATES ACT, 1961

24. Persons who may be admitted as advocates on a State roll.- (1) Subject

to the provisions of this Act, and the rules made thereunder, a person

shall be qualified to be admitted as an advocate on a State roll, if he

fulfills the following conditions, namely:- (a) he is a citizen of India:

Provided that subject to the other provisions contained in this Act, a

national of any other country may be admitted as an advocate on a State

roll, if citizens of India, duly qualified, are permitted to practise law in that

other country; (b) he has completed the age of twenty-one years; (c) he

has obtained a degree in law- (i) before the [12th day of March, 1967],

from any University in the territory of India; or (ii) before the 15th August,

1947, from any University in any area which was comprised before that

date within India as defined by the Government of India Act, 1935; or [(iii)

after the 12th day of March, 1967, save as provided in sub-clause (iiia),

after undergoing a three year course of study in law from any University

in India which is recognised for the purposes of this Act by the Bar

Council of India; or (iiia) after undergoing a course of study in law, the

duration of which is not less than two academic years commencing from

the academic year 1967-68 or any earlier academic year from any

University in India which is recognised for the purposes of this Act by the

Bar Council of India; or] [(iv) in any other case, from any University

outside the territory of India, if the degree is recognised for the purposes

of this Act by the Bar Council of India] or; [he is barrister and is called to

the Bar on or before the 31st day of December, 1976 [or has passed the

article clerks examination or any other examination specified by the High

Court at Bombay or Calcutta for enrolment as an attorney of that High

Court;] or has obtained such other foreign qualification in law as is

recognised by the Bar Council of India for the purpose of admission as

an advocate under this Act;] [***] (e) he fulfils such other conditions as

may be specified in the rules made by the State Bar Council under this

Chapter; 6[(f) he has paid, in respect of the enrolment, stamp duty, if

any, chargeable under the Indian Stamp Act, 1899 (2 of 1899), and an

enrolment fee payable to the State Bar Council of [six hundred rupees

and to the Bar Council of India, one hundred and fifty rupees by way of a

bank draft drawn in favour of that Council]: Provided that where such

person is a member of the Schedule Castes or the Schedule Tribes and

produces a certificate to that effect from such authority as may be

prescribed, the enrolment fee payable by him to the State Bar Council

shall be 1[one hundred rupees and to the Bar Council of India, twenty-

five rupees]. [Explanation.-For the purposes of this sub-section, a

person shall be deemed to have obtained a degree in law from a

University in India on that date on which the results of the examination

for that degree are published by the University on its notice board or

otherwise declaring him to have passed that examination.] (2)

Notwithstanding anything contained in sub-section (1), [a vakil or a

pleader who is a law graduate] may be admitted as an advocate on a

State roll, if he- (a) makes an application for such enrolment in

accordance with the provisions of this Act, not later than two years from

the appointed day, and (b) fulfils the conditions specified in clauses (a),

(b), (e) and (f) of sub-section (1). [(3) Notwithstanding anything contained

in sub-section (1) a person who- (a) [***] has, for at least three years,

been a vakil or pleader or a mukhtar, or, was entitled at any time to be

enrolled under any law 6[***] as an advocate of a High Court (including a

High Court of a former Part B State) or of a Court of Judicial

Commissioner in any Union territory; or [(aa) before the 1st day of

December, 1961, was entitled otherwise than as an advocate practise

the profession of law (whether by of pleading or acting or both) by virtue

of the provision of any law, or who would have been so entitled had he

not been in public service on the said date; or] [***] (c) before the 1st day

of April, 1937, has been an advocate of any High Court in any area

which was comprised within Burma as defined in the Government of

India Act, 1935; or (d) is entitled to be enrolled as an advocate under any

rule made by the Bar Council of India in this behalf, may be admitted as

an advocate on a State roll if he- (i) makes an application for such

enrolment in accordance with the provisions of this Act; and (ii) fulfils the

conditions specified in clauses (a), (b), (e) and (f) of sub-section (1).]

29. Advocates to be the only recognised class of persons entitled to practise

law.-Subject to the provisions of this Act and any rules made

thereunder, there shall, as from the appointed day, be only one class of

persons entitled to practise the profession of law, namely, advocates.

45. Penalty for persons illegally practising in courts and before other

authorities.-Any person who practises in any court or before any

authority or person, in or before whom he is not entitled to practise under

the provisions of this Act, shall be punishable with imprisonment for a

term which may extend to six months.

49. General power of the Bar Council of India to make rules.-[(1)] The Bar

Council of India may make rules for discharging its functions under this

Act, and, in particular, such rules may prescribe- [(a) the conditions

subject to which an advocate may be entitled to vote at an election to the

State Bar Council including the qualifications or disqualifications of

voters, and the manner in which an electoral roll of voters may be

prepared and revised by a State Bar Council; (ab) qualifications for

membership of a Bar Council and the disqualifications for such

membership; (ac) the time within which and the manner in which effect

may be given to the proviso to sub-section (2) of section (3); (ad) the

manner in which the name of any advocate may be prevented from

being entered in more than one State roll; (ae) the manner in which the

seniority among advocates may be determined; [(af) the minimum

qualifications required for admission to a course of degree in law in any

recognised University;] (ag) the class or category of persons entitled to

be enrolled as advocates; (ah) the conditions subject to which an

advocate shall have the right to practise and the circumstances under

which a person shall be deemed to practise as an advocate in a court;]

(b) the form in which an application shall be made for the transfer of the

name of an advocate from one State roll to another; (c) the standard of

professional conduct and etiquette to be observed by advocates; (d) the

standards of legal education to be observed by universities in India and

the inspection of universities for that purpose; (e) the foreign

qualifications in law obtained by persons other than citizens of India

which shall be recognised for the purpose of admission as an advocate

under this Act; (f) the procedure to be followed by the disciplinary

committee of a State Bar Council and by its own disciplinary committee;

(g) the restrictions in the matter of practice to which senior advocates

shall be subject; [(gg) the form of dresses or robes to be worn by

advocates, having regard to the climatic conditions, appearing before

any court or tribunal;] (h) the fees which may be levied in respect of any

matter under this Act; [(i) general principles for guidance of State Bar

Councils and the manner in which directions issued or orders made by

the Bar Council of India may be enforced;] U) any other matter which

may be prescribed: [Provided that no rules made with reference to

clause (c) or clause (gg) shall have effect unless they have been

approved by the Chief Justice of India:] [Provided further that] no rules

made with reference to clause (e) shall have effect unless they have

been approved by the Central Government. [(2) Notwithstanding

anything contained in the first proviso to sub-section (1), any rules made

with reference to clause (c) or clause (gg) of the said sub-section and in

force immediately before commencement of the Advocates

(Amendment) Act, 1973 (60 of 1973), shall continue in force until altered

or repealed or amended in accordance with the provisions of this Act.]

CRIMINAL PROCEDURE CODE, 1973

477. Power of High Court to make rules. (1) Every High Court may, with the

previous approval of the State Government, make rules- (a) as to the

persons who may be permitted to act as petition-writers in the Criminal

Courts subordinate to it; (b) regulating the issue of licences to such

persons, the conduct of business by them, and the scale of fees to be

charged by them. (c) providing a penalty for a contravention of any of the

rules so made and determining the authority by which such

contravention may be investigated and the penalties imposed; (d) any

other matter which is required to be, may be, prescribed. (2) All rules

made under this section shall be published in the Official Gazette.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21..02..2012

CORAMTHE HONBLE Mr. M.Y. EQBAL, CHIEF JUSTICE

andTHE HONBLE Mr. JUSTICE T.S. SIVAGNANAMW.P. No.5614 of 2010 and M.P. Nos.1, 3 to 5 of 2010

A.K. Balaji ..Petitioners

versus

1. The Government of India,rep. by its Secretary to Government,Law Department,4th Floor, A-Wing,Shastri Bhawan,New Delhi 110001.

2. The Government of India,rep. by its Secretary to Government,Home Department, North Block,Central Secretariat,New Delhi 110 001.

3. The Government of India,rep. by its Secretary to Government,Finance Department, North Block,Lok Nayak Bhavan, New Delhi.

4. The Government of India,rep. by its Secretary to Government,Department of External Affairs,Akbar Bhavan, New Delhi 110021.

5. The Government of India,rep. by its Secretary to Government,Income Tax Department,7th Floor, Mayur Bhavan,Connaught Circle,New Delhi 110 055.

6. The Reserve Bank of India,Central Office,Centre 1, Word Trade Centre,Cuffe Parade, Colaba,Mumbai 400 005.

7. The Bar Council of India,21, ROLlseAvenue,Institutional Area,New Delhi 110 002.

8. The Bar Council of Tamil Nadu,rep. by its Secretary,High Court Campus,

Chennai 600 104.

9. Rouse,Cisons Complex,1st Floor, 150/86,Montieth Road, Egmore,Chennai 600 008, India.

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 LLP71 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 LLP15, 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 Mr.P.Chandrasekaran, SCGC

For Respondent 7 :: Mr.P.S.Raman, Senior Counsel

for Mr.K.Venkatakrishnan

For Respondent 8 :: Mr.A.Navaneethakrishnan,

Advocate General

for Mr.S.Y.Masood

For Respondent 9 :: MS.P.T.Asha,

for M/s.Sarvabhauman Associates

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

19,26,39 & 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, :: Mr.A.L.Somayaji, Senior Counsel

33, 34 & 38 for M/s.R.Senthil Kumar & Rahul Balaji

For Respondent 15 :: 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 MS.D.Prasanna

For Respondents 36 & 37 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 authorities can exercise their disciplinary

authority/control 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, Vice-

Chairmen, 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

91travel 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 non

Indian 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 18 does not own or

operate LPOs in India.

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

94therefore, 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

101Reports 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, none of the foreign lawyers represented by the

respondent-law firms have been enrolled as advocates on any State

rolls in this country. Section 47 of the Act elaborates on the proviso

contained in Section 24 referred to above, and it specifically states that

any country which prevents the citizens of India from practising the

profession of law or subjects them to unfair discrimination in that country

shall not be entitled to practise the profession of law in India. Sub

section (2) empowers 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 of other

countries are barred from practising the profession of law in India.

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 had adopted the

arguments advanced on behalf of the writ petitioner. The Union of India

had submitted 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 with all concerned.

However, it was stated 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 non-

litigious 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 Assembly of the United Nations having

recommended that 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 wants India to be a hub of

International Arbitration.

JJo29. 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. Cause of

action is not defined in any statute. 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

~~~~-- - - - --- -

1J1facts. 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 respondent-

law 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

..~

1

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 illegal and in violation of the

provisions of the Advocates Act, 1961. 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 of Section 29 of the Foreign Exchange

Regulation Act, 1971 and that the said permission should not be

construed in any way regularizing, condoning or in any manner

validating any violations, contraventions 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 their liaison activities in India only on being

enrolled as advocates under the Advocates Act, 1961. There, a

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 legal assistance to another person by

drafting documents, 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 matters

should have been enrolled as an advocate under the Act. 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.

142. 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 I 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 / 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

-- --------

1litigious 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 isI

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


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


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 cross

border 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. The Supreme Court observed that the

question involved in the said case was of considerable public

importance, especially on Foreign Direct Investment, 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~,the 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 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

1~4in 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, the connected

miscellaneous petitions are closed.

(M.Y.E., C.J.) (T.S.S., J.)

February 21,2012

The Honble the Chief Justice and T.S. Sivagnanam, J.

h ')II--r~ (Pr1

ITEM NO.25 COURT NO.7

A ,I\} N~\J R£ p- 2_j.40

SECTION XII

SUP REM E C 0 U R T o F I N D I ARECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Civil)No (s).17150-17154/2012

(From the judgement and order dated 21/02/2012 in WPNo.5614/2010 and MP No.1/2010, MP No.3/2010, MPNo.4/2010 and MP No.5/2010 of The HIGH COURT OFMADRAS)

BAR COUNCIL OF INDIA Petitioner(s)

VERSUS

A.K. BALAJI & ORS. Respondent(s)

(With appln (s) for exemption from filing c/c of theimpugned Judgment and permission to place addledocuments on record and PERMISSION TO FILELENGTHY LIST OF DATES and with prayer for interimrelief and office report)

Date: 04/07/2012 These Petitions were called on forhearing today.

CORAM :HON'BLE MR. JUSTICE R.M. LODHAHON'BLE MR. JUSTICE ANIL R. DAVE

For Petitioner(s) Mr. M.N. Krishnamani, Sr. Adv.Mr. Manan Mishra, Sr. Adv.

Mr. Ardhendumauli Kumar Prasad,Adv.Ms. Antima Bajaj, Adv.

For Respondent(s)R-14 & 33 Dr. Abhishek Manu Singhvi, Sr. Adv.

Mr. Manu Seshadri, Adv.Mr. ArnitBhandari, Adv. for

M/S. Dua Associates,Adv.

R-10,16,19,26,39& 40

Mr. Mukul Rohtagi, Sr. Adv.Mr. Saurabh Kirpal, Adv.Mr. M. Rishi Kumar,Adv.Mr. Mahesh Agarwal, Adv.Mr. Rishi Agrawala, Adv.

Mr. E.C. Agrawala ,Adv.Ms. Neeha Nagpal, Adv.

R-18 Mr. Nageshwar Rao, Sr. Adv.Mr. Sakya Singha Chaudhari, Adv.Mr. Sandeep Das, Adv.

Ms. Poorva Nanawati, Adv.

UPON hearing counsel the Court made theFollowing

o R D E RIssue notice returnable in ten weeks.

Mis. Dua Associates waive service for commonrespondent Nos. 14 and 33, Mr. E.C. Agrawala,

Advocate, waives service for common respondent Nos.10, 16, 19, 26, 39 and 40, and Mr. Sakya SinghaChaudhari, Advoca te, waives service for commonrespondent No. 18 in the special leave petitions.

Notice shall only go to the unrepresentedrespondents.

Dasti, in addition to the ordinary process, ispermitted.

In the meanwhile, it is clarified that ReserveBank of India shall not grant any permission to the

foreign law firms to open liaison offices inIndia under Section 29 of the Foreign ExchangeRegulation Act, 1973. It is also clarified that theexpression "to practice the profession of law"under Section 29 of the Advocates Act, 1961 coversthe persons practicing Li,tigious matters as wellas non-litigious matters other than contemplated inpara 63 (ii) of the impugned order and, therefore,to practice in non-litigious matters in India theforeign law firms, by whatever name called ordescribed, shall be bound to follow the provisionscontained ln the Advocates Act, 1961.

(Rajesh Dham)·Court Master

(Renu Diwan)Court Master

IN THE SUPREMECOURTOF INDIACIVIL APPELLATEJURISDICTION

LA. NO. OF 2015IN

SPECIAL LEAVEPETITION (CIVIL) NO. OF 2015

IN THE MATTER OF:Global Indian Lawyers ...PETITIONER

VERSUSBar Council of India & Ors ...RESPONDENTS

AN APPLICATION FOR PERMISSION TO FILE SPECIAL LEAVEPETITION AGAINST IMPUGNED ORDER DATED 16/12/2009PASSED BY THE HON'BLE HIGH COURT OF BOMBAY IN WRIT

PETITION NO. 1526 OF 1995

To

Hon'ble the Chief Justice of India

and his companion judges of the

SupremeCourt of India.

The humble application of theabove named Petitioner

MOST RESPECTFULLY SHOWETH:-

1. The Petitioner seeks leave to assail the impugned Judgment and final

order dated 16 December 2009 passed by the Hon'ble High Court of

Judicature at Bombay in Writ Petition (C) No. 1526 of 1995 by way of

a Special Leave Petition under Article 136 of the Constitution of India.

The Petitioner is aggrieved by the impugned order whereunder the

Hon'ble High Court has erroneously held that to practice the

profession of law in India, a foreign law firm has to fulfill the

qualification of being enrolled as advocates under the AdvocatesAct,

1961.

2. The Petitioner seeks permissionof this Hon'ble Court to read and rely

upon the contents of the Special Leave Petition and that the same

are not repeated herein for sake of brevity.

3. The Petitioner seeks permission to assail the impugned judgment and

order of the Hon'ble High Court of Bombay in as much as the

Petitioner is aggrieved by the findings of the impugned judgment

which erroneously places a qualification on foreign firms to register

as advocates under the Advocates Act, when there is the no such

restriction under the AdvocatesAct or under the Bar Council of India

Rules (the "BCI Rules") to prohibit a foreign law firm from


4. The Petitioner being a Society registered in India of legal

professionals and appropriately qualified lawyers who are citizens of

India and are qualified to practice law in India and dedicated to

promote the internationalization of the legal fraternity, the aim and

objects for which the Society has been established includes

promoting and creating opportunities for Indian legal professionalsto

have a global outlook and acquire global and international exposure

with the inflow of international law firms into the Indian legal system.

5. Leave is sought to challenge the judgment and final order dated 16

December, 2009 passed by the Hon'ble High Court of Judicature at

Bombay on the grounds that the impugned judgment is premises on

an incorrect reading of the concept of a law firm. The Petitioner

respectfully submits that under the provisions of AdvocatesAct, 1961

it is only the individual lawyers who are required to be registered and

not the law firms in India. Such registered lawyers collectively form a

law firm, which is only a structure, sometimes in the form of

partnership, an LLP, or a sole proprietorship. Hence, the necessary

corollary to this requirement would entail that even in respect of a

foreign law firm, it is not the 'firm' which is required to be registered

under the Advocates Act (as has been held by the High Court of

Bombay), but the individual lawyers of that firm seeking to practice

Indian law who are mandated to enroll under the provisions of the

AdvocatesAct.

6. Further, it is submitted that the Hon'ble High Court of Bombay in its

impugned order has not touched the following questions of law,

which are hereinbelow raised as being imperative in the larger public

interest of the legal profession and justice delivery system, to be

adjudicated by this Hon'ble Court, namely:

i) The Courts have not delved upon the requirements under the

Advocates Act and the BCI Rulesfor registration of lawyers based

upon the demarcation of the practice of the profession of law into

the practice of Indian law and the practice of foreign law.

ii) The Courts have also not delved into the possibility of whether a

foreign law firm could have Indian qualified lawyers join the firm

and practice Indian law, whereas the foreign lawyers could


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


unregulated. In this regard, it is submitted that each individual

registered lawyer in such firms would be independently regulated

under the Advocates Act, as is the case with Indian law firms.

Furthermore, the foreign lawyers practicing foreign law in such

firms would be regulated by the laws of each foreign state.

7. It is in light of the above submissions raising substantial questions of

public interest and national policy, that the Petitioner seeks leave to

assail the untenable impugned judgment of the High Court of

Bombay as it is expedient in the interest of justice and the profession

of law in India that this Hon'ble Court take into consideration the

rights of dual qualified lawyers (qualified in Indian and foreign law)

as well as only foreign qualified lawyers (Indians or non-Indians) to

practice law in India under the umbrella of a foreign law firm. The

Petitioner submits that the Society was registered with a dedicated

objective of promoting the internationalization of the legal fraternity.

The aim and objects for which the Society has been established

includes promoting and creating opportunities for Indian legal

professionals to have a global outlook and acquire global and.

international exposure with the inflow of international law firms into

the Indian legal system. The Petitioner aims to enable Indian

qualified lawyers to work with global lawyers being basedout of India

and to encourage the working of foreign qualified lawyers and Indian

qualified lawyers from India, to give Indian law students and Indian

qualified lawyers an opportunity of working at international law firms

in India and to promote the setting up of a universal global standard

of regulating legal profession and the code of conduct binding

lawyers.

8. It is in light of the above-mentioned circumstances that the Petitioner

most respectfully pray: -

PRAYER

In the premises the petitioner humbly prays that this Hon'ble

Court may graciously be pleasedto:

(a) Grant permission to Petitioner to prefer present Special Leave

Petition filed against impugned judgment and order dated 16

December 2009 passed by the Hon'ble High Court of Judicature

at Bombay in Writ Petition (C) No. 1526 of 1995; and/or

(b) pass such other and further order/s as this Hon'ble Court may

deem fit and proper in the facts and circumstances of the

present case.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS INDUTY BOUND SHALL EVER PRAY.

Filed by:-

VIKASH SINGHAdvocate for the Petitioner

New Delhi


LA. NO. OF 2015IN




APPLICATION FOR EXEMPTION FROM FILING CERTIFIED COPy

OF THE IMPUGNED JUDGMENT AND ORDER

ToHon'ble the Chief Justice of Indiaand his companion judges of theSupreme Court of India.


MOSTRESPECTFULLYSHOWETH:-

-1. The Petitioner seeks leave to assail the impugned Judgment and final

Special Leave Petition under Article 136 of the Constitution of India.


Judicature at Bombay in Writ Petition (C) No. 1526 of 1995 by way of a


Hon'ble High Court has erroneously held that to practice the profession

of law in India, a foreign law firm has to fulfill the qualification of being

enrolled as advocates under the AdvocatesAct, 1961.

2. That the instant application is being filed seeking exemption from

filing certified copy of the impugned Judgment and final order dated 16

December 2009 passed by the Hon'ble High Court of Judicature at

Bombay in Writ Petition (C) No. 1526 of 1995. That it is submitted that

the certified copies of the impugned judgment and orders dated 16

December 2009 has not been provided to the Advocate on Record for

the Petitioner as the same was not available with the instructing

Advocate. The matter is very urgent and therefore the Special Leave

Petition is being filed with a simple copy of the impugned judgment

and order.

3. That the Petitioner therefore most respectfully prays:-

PRAYER

a) exempt the Petitioner from filing the certified copy of the impugned

Judgment and final order dated 16 December 2009 passed by the

Hon'ble High Court of Judicature at Bombay in Writ Petition (C) No.

1526 of 1995;

b) pass such other/further order as this Hon'ble Court may deem fit

and proper in the facts and circumstances of the present case.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTYBOUND SHALL EVER PRAY

Filed by:-


New DelhiDated: L6 -OJ, '""'< OJS"


I.A. NO. OF 2015IN




AN APPLICATION FOR CONDONATION OF DELAY IN FILINGSPECIAL LEAVE PETITION

To

Hon'ble the Chief Justice of India

and his companion judges of the

Supreme Court of India.


MOST RESPECTFULLY SHOWETH:-

1. The Petitioner seeks leave to assail the impugned Judqrnent and final


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.


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


4. Leave is sought to challenge the judgment and final order dated 16

December, 2009 passed by the Hon'ble High Court of Judicature at

Bombay on the grounds that the impugned judgment is premises on

an incorrect reading of the concept of a law firm.

5. It is submitted that immediately after passingof the impugned order,

there was another writ petition of similar nature, raising the same

substantial questions of law being filed before the Hon'ble High Court

of Madras by way of W.P. No. 5614/2010. That the said writ petition

came to be dismissed vide order dated 21/02/2012, which came to

be challenged by way of a Special Leave Petition before this Hon'ble

Court bearing SLP (C) No. 17150-54 of 2012. That the Hon'ble

Supreme Court was pleased to issue notice in the said matter on

04/07/2012.

6. As matters stood thus, the Petitioner Society was formed with an

objective of enabling the Internationalization of the Legal Profession

for Indian Lawyers. It was decided that one of the means to attain

the afore-said objective would be to intervene in the matter pending

before the Hon'ble Supreme Court titled as 'Bar Council of India v.

A.K. Balaji & Ors'. It is at this stage that the Petitioner Society noticed

that there were some diametrically opposite findings in the judgment

of the Hon'ble High Court of Madras as opposed to the impugned

judgment and that the said two High Courts have not considered

some substantial questions of law involving the larger interest of the

Indian legal profession. In particular, it was noted that Courts have

not delved upon the requirements under the Advocates Act and the

BCI Rules for registration of lawyers based upon the demarcation of

the practice of the profession of law into the practice of Indian law

and the practice of foreign law as also not delved into the possibility

of whether a foreign law firm could have Indian qualified lawyers join

the firm and practice Indian law, whereas the foreign lawyers could


7. It is on account of the afore-mentioned substantial questions of law

having not been considered by either of the two High Courts, that the

Petitioner Society vide its Resolutiondated 2.0(~ resolved to prefer a

special leave petition to challenge the impugned judgment with a

view to urge certain additional issues with respect to the issue of

entry of foreign law firms in India, which have not been adhered to

or considered by either of the two High Courts in their judgments

aforementioned.

8. It is on this account that certain delay of 1~& days has•occurred in preferring this present Petition. It is submitted that the

delay so occasioned is neither on account of any willful conduct of

the Petitioner, nor due to reasons within its control. That if the

present application is not allowed, grave prejudice will be caused

to the Petitioner.

The Petitioner therefore, most respectfully pray: -

PRAYER

In the premises the petitioner humbly prays that this Hon'ble

Court may graciously be pleasedto:

(a)Condone the delay of j.9~ days in preferring the present

Special Leave Petition against impugned judgment and order

dated 16 December 2009 passed by the Hon'ble High Court of

Judicature at Bombay in Writ Petition (C) No. 1526 of 1995;

and/or

J9-(b) pass such other and further order/s as this Hon'ble Court may

deem fit and proper in the facts and circumstances of the

present case.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS INDUTY BOUND SHALL EVER PRAY.

Filed by:-


New Delhi

Dated: 16 --0~ - ?. 0 If"'

VIKASH SINGHADVOCATE-ON-RECORD

B-51 204, LGF, Safdarjung EnclaveNew 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 forthe Petitioner above-named against the impugned judgment and final order dated16 December 2009 passed by the Hon'ble High Court of Judicature at Bombay inWrit Petition (C) No. 1526 of 1995.

That the registry has raised defect No. 17 stating non-filing of resolution dated12/2/2006 and copy of the writ petition. It is stated that the resolution and WritPetition so mentioned is not relevant and necessary for filing of the presentSpecial Leave Petition. That if required, the said resolution and Writ Petition shallbe produced at the time of the hearing of the Special Leave Petition. Kindlyregistered Ilist the matter at my own risk.

Thanking You,

(VIKASH SINGH)(Advocate-on-Record for Petitioner)Registration No. : 1886

gila slp in foreign law firms sc case

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