# BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS

- **Citation:** [2018] 3 S.C.R. 229
- **Court:** Supreme Court of India
- **Decided:** 2018-03-13
- **Case number:** Civil Appeal Nos. 7875-7879 of 2015
- **Bench:** Adarsh Kumar Goel, Uday Umesh Lalit
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bar-council-of-india-v-a-k-balalji-and-ors-32722
- **Pages:** 44

## Headnote

Advocates Act, 1961:
ss. 24, 29, 47(2) r/w s.49(1)(e) and s.49A - Foreign law firms/
lawyers - Permissibility to practice in India - Held: Practice of law
includes litigation as well as non-litigation - Giving of opinion,
drafting of instruments, participation in conferences involving legal
discussion are parts of non-litigation practice - Regulatory
mechanism for conduct of advocates applies to non-litigation work
also - As per the Act, advocates enrolled with the Bar Council alone
are entitled to practice law - Foreign law firms/companies or foreign
lawyers cannot practice profession of law in India either in the
litigation or in non-litigation side - Visit of any foreign lawyer on
fly in and fly out basis may amount to practice of law if it is on
regular basis - A casual visit for giving advice may not be covered
by the expression 'practice' - Whether a particular visit is casual
or frequent so as to amount to practice is a question of fact to be
determined from situation to situation - It is not correct that the Act
applies only if a person is practicing Indian law - A foreign lawyer
is not entitled even to practice foreign law in India without subjecting
himself to the regulatory mechanism of the Bar Council of India
Rules - Advocates Act equally deals with companies or firm and
individuals - Bar Council of India Rules,1975.
ss. 32 and 33 - Foreign law firms/lawyers - Permissibility to
conduct arbitration proceedings - In respect of disputes arising
out of a contract relating to international commercial arbitration -
Held: There is no absolute right of foreign lawyer to conduct such
arbitration proceedings - However, they may not be debarred from
conducting such arbitration proceedings in view of ss. 32 and 33,
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if the Rules of Institutional Arbitration apply or the matter is covered
by the provisions of Arbitration Act - But they will be governed by
Code of Conduct applicable to legal profession in India - Central
Government or Bar Council of India is at liberty to frame rules in
this regard.
Applicability of the Act - To the customised and integrated
service provided by Business Process Outsourcing (BPO) Companies
- Held: If such services in pith and substance amount to practice of
law, the Act would be applicable - The manner in which they are
styled may not be conclusive.
Disposing of the appeals, the Court
HELD: 1. Ethics of the legal profession apply not only when
an advocate appears before the Court. The same also apply to
regulate practice outside the Court. Adhering to such ethics is
integral to the administration of justice. The professional
standards laid down from time to time are required to be followed.
Thus, practice of law includes litigation as well as non litigation.
[Para 39] [270-A-B]
2. Practicing of law includes not only appearance in courts
but also giving of opinion, drafting of instruments, participation
in conferences involving legal discussion. These are parts of nonlitigation practice which is part of practice of law. Scheme in
Chapter-IV of the Advocates Act makes it clear that advocates
enrolled with the Bar Council alone are entitled to practice law,
except as otherwise provided in any other law. All others can
appear only with the permission of the court, authority or person
before whom the proceedings are pending. Regulatory
mechanism for conduct of advocates applies to non-litigation work
also. The prohibition applicable to any person in India, other than
advocate enrolled under the Advocates Act, certainly applies to
any foreigner. The view of the Bombay High Court and Madras
High Court to the effect that foreign law firms/companies or
foreign lawyers cannot practice profession of law in India either
in the litigation or in non-litigation side, is upheld. [Paras 40 and
44] [270-C-E; 271-E-F]
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Pravin C. Shah versus K.A. Mohd. Ali (2001) 8 SCC
650 : [2001] 3 Suppl. SCR 675 ;

## Text

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 BAR COUNCIL OF INDIA
 v
 A.K. BALALJI AND ORS.
 (Civil Appeal Nos. 7875-7879 of 2015)
 MARCH 13, 2018
[ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.]
Advocates Act, 1961:
ss. 24, 29, 47(2) r/w s.49(1)(e) and s.49A - Foreign law firms/
lawyers - Permissibility to practice in India - Held: Practice of law
includes litigation as well as non-litigation - Giving of opinion,
drafting of instruments, participation in conferences involving legal
discussion are parts of non-litigation practice - Regulatory
mechanism for conduct of advocates applies to non-litigation work
also - As per the Act, advocates enrolled with the Bar Council alone
are entitled to practice law - Foreign law firms/companies or foreign
lawyers cannot practice profession of law in India either in the
litigation or in non-litigation side - Visit of any foreign lawyer on
fly in and fly out basis may amount to practice of law if it is on
regular basis - A casual visit for giving advice may not be covered
by the expression 'practice' - Whether a particular visit is casual
or frequent so as to amount to practice is a question of fact to be
determined from situation to situation - It is not correct that the Act
applies only if a person is practicing Indian law - A foreign lawyer
is not entitled even to practice foreign law in India without subjecting
himself to the regulatory mechanism of the Bar Council of India
Rules - Advocates Act equally deals with companies or firm and
individuals - Bar Council of India Rules,1975.
ss. 32 and 33 - Foreign law firms/lawyers - Permissibility to
conduct arbitration proceedings - In respect of disputes arising
out of a contract relating to international commercial arbitration -
Held: There is no absolute right of foreign lawyer to conduct such
arbitration proceedings - However, they may not be debarred from
conducting such arbitration proceedings in view of ss. 32 and 33,
 [2018] 3 S.C.R. 229
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if the Rules of Institutional Arbitration apply or the matter is covered
by the provisions of Arbitration Act - But they will be governed by
Code of Conduct applicable to legal profession in India - Central
Government or Bar Council of India is at liberty to frame rules in
this regard.
Applicability of the Act - To the customised and integrated
service provided by Business Process Outsourcing (BPO) Companies
- Held: If such services in pith and substance amount to practice of
law, the Act would be applicable - The manner in which they are
styled may not be conclusive.
Disposing of the appeals, the Court
HELD: 1. Ethics of the legal profession apply not only when
an advocate appears before the Court. The same also apply to
regulate practice outside the Court. Adhering to such ethics is
integral to the administration of justice. The professional
standards laid down from time to time are required to be followed.
Thus, practice of law includes litigation as well as non litigation.
[Para 39] [270-A-B]
2. Practicing of law includes not only appearance in courts
but also giving of opinion, drafting of instruments, participation
in conferences involving legal discussion. These are parts of nonlitigation practice which is part of practice of law. Scheme in
Chapter-IV of the Advocates Act makes it clear that advocates
enrolled with the Bar Council alone are entitled to practice law,
except as otherwise provided in any other law. All others can
appear only with the permission of the court, authority or person
before whom the proceedings are pending. Regulatory
mechanism for conduct of advocates applies to non-litigation work
also. The prohibition applicable to any person in India, other than
advocate enrolled under the Advocates Act, certainly applies to
any foreigner. The view of the Bombay High Court and Madras
High Court to the effect that foreign law firms/companies or
foreign lawyers cannot practice profession of law in India either
in the litigation or in non-litigation side, is upheld. [Paras 40 and
44] [270-C-E; 271-E-F]
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Pravin C. Shah versus K.A. Mohd. Ali (2001) 8 SCC
650 : [2001] 3 Suppl. SCR 675 ; Ex. Capt. Harish Uppal
v. Union of India (2003) 2 SCC 45 : [2002] 5 Suppl.
SCR 186 - relied on.
3. Visit of any foreign lawyer on fly in and fly out basis may
amount to practice of law if it is on regular basis. A casual visit
for giving advice may not be covered by the expression 'practice'.
Whether a particular visit is casual or frequent so as to amount
to practice is a question of fact to be determined from situation
to situation. In case of a dispute whether a foreign lawyer was
limiting himself to "fly in and fly out" on casual 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 or whether in substance he was doing practice which
is prohibited can be determined by the Bar Council of India.
However, the Bar Council of India or Union of India will be at
liberty to make appropriate Rules in this regard including
extending Code of Ethics being applicable even to such cases. It
is not correct that the Advocates Act applies only if a person is
practicing Indian law. It also cannot be said that a foreign lawyer
is entitled to practice foreign law in India without subjecting
himself to the regulatory mechanism of the Bar Council of India
Rules. The Advocates Act equally deals with companies or firms
and individuals. If prohibition applies to an individual, it equally
applies to group of individuals or juridical persons. [Paras 41 and
44] [270-F-G; 271-G-H]
4. The direction of Madras High Court that foreign lawyers
cannot be debarred from coming to India to conduct arbitration
proceedings in respect of disputes arising out of a contract
relating to international commercial arbitration is also modified.
There is no absolute right of the foreign lawyer to conduct
arbitration proceedings in respect of disputes arising out of a
contract relating to international commercial arbitration. If the
Rules of Institutional Arbitration apply or the matter is covered
by the provisions of the Arbitration Act, foreign lawyers may not
be debarred from conducting arbitration proceedings arising out
 BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS.
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of international commercial arbitration in view of Sections 32 and
33 of the Advocates Act. However, they will be governed by
code of conduct applicable to the legal profession in India. Bar
Council of India or the Union of India are at liberty to frame rules
in this regard. [Para 45] [272-B-D]
5. The Court also modifies the direction of the Madras High
Court that the B.P.O. Companies providing wide range of
customized 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. Mere label of such services cannot be
treated as conclusive. If in pith and substance the services amount
to practice of law, the provisions of the Advocates Act will apply
and foreign law firms or foreign lawyers will not be allowed to do
so. If their services do not directly or indirectly amount to practice
of law, the Advocates Act may not apply. This is a matter which
may have to be dealt with on case to case basis having regard to
a fact situation.[Paras 43 and 46] [271-D-F]
Bar Council of Maharashtra v. M.V. Dabholkar
(1976) 2 SCC 291 : [1976] 2 SCR 48 - referred to.
Roel v. New York County Lawyers Association 3 N.Y.
2d 224 (1957) ; Appell v. Reiner 43 N.J. 313 (1964) ;
204 A.2d 146 ; Zauderer v. Office of Disciplinary
Counsel 471 US 626 (1985) ; Shapero v. Kentucky Bar
Association 486 US 466 - referred to.
Case Law Reference
[1976] 2 SCR 48
 referred to
Para 31
[2001] 3 Suppl. SCR 675 relied on
Para 38
[2002] 5 Suppl. SCR 186 relied on
Para 38
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CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 78757879 of 2015.
From the Judgment and Order dated 21.02.2012 of the High Court
of Judicature at Madras in WP No. 5614 of 2010 and M.P. Nos.1, 3 to 5
of 2010.
WITH
Civil Appeal Nos.8028 and 7170 of 2015.
C. U. Singh, Rajiv Dutta, Sr. Advs, Ardhendumauli Kumar Prasad,
Ms. Taruna Ardhendumauli Prasad, Nirmal Kumar Ambastha, Namit
Saxena, Nakul Dewan, Vikash Singh, Himanshu Chaubey, Zain Maqbool,
Ms. Neelu Mohan, Ms. Abhishikta Mallick, Subhro Sanyal, Advs for the
Appellant.
Maninder Singh, ASG, Arvind Datar, Sajjan Poovayya, Dushyant
Dave, Vikas Singh, Gurukrishna Kumar, Sr. Advs, Rishi Kumar, Mahesh
Agarwal, Ms. Neeha Nagpal, Rishi Agrawala, E.C. Agrawala,
Ms. Aastha Mehta, Ritin Rai, Chitranshul A. Sinha, Priyadarshi Banerjee,
Pratibhanu Singh K., Ms. Sonali Khanna, Abhas Kshetrapal, Jayant Malik,
M/s. Dua Associates, Sudhir Sharma, Abhishek Swaroop, Akhil Anand,
Ayush Malhotra (for Abhay Kumar), Ms. Madhavi Diwan, Abhinav
Mukherjee, Prabhas Bajaj, Akshay Amritanshu, M. K. Maroria,
Mrs. Anil Katiyar, Vikrant Yadav (For M.C. Dhingra), Aditya Verma,
Ms. Jennifer Rohita Xavier, Vikas Singh Jangra, Ms. S. Lakshmi,
M.S. Ananth, Moazzam Khan, Alppak Banerjee, Dushyant Tiwari, Brijesh
Kumar, Akshat Goel (for M/s.Lex Pretia & Co.), Nakul Dewan, Vikash
Singh, Himanshu Chaubey, Zain Maqbool, Ms. Neelu Mohan,
Ms. Abhishikta Mallick, Syed Jafar Alam, Vipul Wadhwa, N. L. Ganapathi,
Aman Shukla, Dr. Lalit Bhasin, Yakesh Anand, Ms. Anindita Pujari,
Ms. Triveni Potekar, Syed Rehan, Ms. Kavita Bhardwaj, Satyajit Desai,
Ms. Anagha S. Desai, Ardhendumauli Kumar Prasad, C. Mukund, Pankaj
Jain, M. B. Elakkumanan, Bijoy Kumar Jain, Dr. Lalit Bhasin, Ms. Nina
Gupta, Mudit Sharma, Ms. Palak Chadha, Tushar Sharma, Purushottam
Sharma Tripathi, Mrs. Shally Bhasin, Ritin Rai, C. Paramasivam, Rakesh
K. Sharma, Ms. Meera Mathur, Ms. Divya Harchandani, Nikhil Nayyar,
Advs for the Respondents.
 BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS.
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The Judgment of the Court was delivered by
ADARSH KUMAR GOEL, J. 1. The issue involved in this
batch of matters is whether foreign law firms/lawyers are permitted to
practice in India. Reference needs to be made to two leading matters.
Civil Appeal Nos.7875-79 of 2015 have been filed by the Bar Council of
India against the Judgment of Madras High Court dated 21st February,
2012 in A.K. Balaji versus The Government of India1. Civil Appeal
No.8028 of 2015 has been filed by Global Indian Lawyers against the
judgment of Bombay High Court dated 16th December, 2009 in Lawyers
Collective versus Bar Council of India2.
2. The Madras High Court held as follows:
"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 nonlitigation 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 in and fly out" basis, for the
purpose of giving legal advise to their clients in India
regarding foreign law or their own system of law and on
diverse international legal issues.
(iii) Moreover, having regard to the aim and object of the
International Commercial Arbitration introduced in the
Arbitration and Conciliation Act, 1996, foreign lawyers cannot
be debarred to come to India and conduct arbitration
proceedings in respect of disputes arising out of a contract
relating to international commercial arbitration.
(iv) The B.P.O. Companies providing wide range of customised
and integrated services and functions to its customers like
word-processing, secretarial support, transcription services,
proof-reading services, travel desk support services, etc. do
not come within the purview of the Advocates Act, 1961 or
1 AIR 2012 Mad 124
2 2010 (2) Mah LJ 726
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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."
3. The Bombay High Court, on the other hand, concluded as
follows:
"60. For all the aforesaid reasons, we hold that in the facts
of the present case, the RBI was not justified in granting
permission to the foreign law firms to open liaison offices in
India under Section 29 of the 1973 Act. We further hold that
the expressions ' to practise the profession of law' in Section
29 of the 1961 Act is wide enough to cover the persons
practising in litigious matters as well as persons practising in
non litigious matters and, therefore, to practise in non litigious
matters in India, the respondent Nos. 12 to 14 were bound to
follow the provisions contained in the 1961 Act. The petition
is disposed of accordingly with no order as to costs."
4. When the matter against the judgment of the Madras High
Court came up for hearing before this Court on 4th July, 2012, following
interim order was passed :
"In the meanwhile, it is clarified that Reserve Bank of India
shall not grant any permission to the foreign law firms to
open liaison offices in India under Section 29 of the Foreign
Exchange Regulation Act, 1973. It is also clarified that the
expression "to practice the profession of law" under Section
29 of the Advocates Act, 1961 covers the persons practicing
litigious matters as well as non-litigious matters other than
contemplated in para 63(ii) of the impugned order and,
therefore, to practice in non-litigious matters in India the
foreign law firms, by whatever name called or described, shall
be bound to follow the provisions contained in the Advocates
Act, 1961."
The said order has thereafter continued and is still in force.
5. In Civil Appeal Nos.7875-7879 of 2015, writ petition was filed
before the Madras High Court by one A.K. Balaji, Advocate. Apart
from official respondents, 32 law firms of U.K., U.S.A., France and
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[ADARSH KUMAR GOEL, J.]
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Australia have been impleaded as respondents 9 to 40. Prayer in the
writ petition is to take action against the original respondents 9 to 40 or
any other foreign law firms or foreign lawyers illegally practicing the
profession of law in India and direct them to refrain from having any
illegal practice on the litigation side and in the field of commercial
transactions in any manner whatsoever.
PLEADINGS
6. Averments in the petition are that the writ petitioner was an
advocate enrolled with the Bar Council of Tamil Nadu. To practice law
in India, a person has to be Indian citizen and should possess degree in
law from a recognized University in India. Nationals of other countries
could be admitted as advocates in India only if citizens of India are
permitted to practice in such other countries. Foreign degree of law
from a University outside India requires recognition by the Bar Council
of India. The Indian advocates are not allowed to practice in U.K.,
U.S.A., Australia and other foreign nations except on fulfilling onerous
restrictions like qualifying tests, experience, work permit. Foreign
lawyers cannot be allowed to practice in India without reciprocity.
7. Under the Advocates Act (the Act), a foreigner is not entitled
to practice in India in view of bar contained in Section 29. However,
under the guise of LPOs (Legal Process Outsourcing), conducting
seminars and arbitrations, foreign lawyers are visiting India on Visitor
Visa and practicing illegally. They also violate tax and immigration laws.
They have also opened their offices in India for practice in the fields of
mergers, take-overs, acquisitions, amalgamations, etc. Disciplinary
jurisdiction of the Bar Council extends only to advocates enrolled under
the Act. In India, the legal profession is considered as a noble profession
to serve the society and not treated as a business but the foreign law
firms treat the profession as trade and business venture to earn money.
Indian lawyers are prohibited from advertising, canvassing and solicit
work but foreign law firms are advertising through websites and canvass
and solicit work by assuring results. Many accountancy and management
firms are also employing graduates and thus rendering legal services.
8. The stand of the Union of India initially was that if foreign law
firms are not allowed to take part in negotiations, settling of documents
and arbitrations in India, it will obstruct the aim of making India a hub of
international arbitration. Many arbitrations with Indian Judges as
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arbitrators and Indian lawyers are held outside India where foreign and
Indian law firms advise their clients. Barring the entry of foreign law
firms for arbitrations in India will result in many arbitrations shifting to
Singapore, Paris and London, contrary to the declared policy of the
Government and against national interest. However, its final stand in
affidavits dated 19th April, 2011 and 17th November, 2011 was different
as recorded in Para 3 of the High Court Judgment as follows :
"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,
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[ADARSH KUMAR GOEL, J.]
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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 nonlitigious practice of law, and it is only persons enrolled under
Section 24 of the Act, who can practice before the Indian
Courts."
(emphasis added)
9. In this Court, stand of the Union of India is that presently it is
waiting for the Bar Council of India to frame rules on the subject.
However, it can frame rules under Section 49A at any stage.
10. Stand of the Bar Council of India before the High Court is
that even non litigious practice is included in the practice of law which
can be done only by advocates enrolled under the Act. Reliance was
placed on the judgment of the Bombay High Court in Lawyers Collective
(supra). Further reference was made to Sections 24 and 29 of the Act.
Section 47(2) read with Section 49(1)(e) provides for recognition of
qualifications of foreigners being recognized for practice. It was
submitted that practice of foreign lawyers in India should be subject to
regulatory powers of the Bar Council.
11. Stand of the foreign law firms, inter alia, is that there is no
bar to a company carrying on consultancy/support services in the field
of protection and management of intellectual, business and industrial
proprietary rights, carrying out market service and market research,
publication of reports, journals etc. A person not appearing before Courts
or Tribunals and not giving legal advice cannot be said to be practice of
law. The ninth respondent stated that it was a part of group of companies
and not a law firm and was duly registered under the Indian Companies
Act, 1956. The tenth respondent, another foreign law firm, submitted
that there is no violation of law in giving advice on foreign law. Even
Indian lawyers are permitted to practice outside India and issue of
reciprocity is a policy matter to be decided by the Government of India.
It does not have a law office in India and does not give advice on Indian
laws. In England, foreign lawyers are free to advice on their own system
of law without nationality requirement or qualification of England. The
eleventh respondent is an American law firm and submitted that it advises
clients on international legal issues from different countries. Indian clients
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are given advice through Indian lawyers and law firms which are enrolled
with the Bar Council. There is no discrimination in U.S. against Indian
citizens practicing law. Indian lawyers travel to US on temporary basis
for consultation on Indian law issues.
12. The Act and the Bar Council Rules govern practice of Indian
law and not foreign law. Participation in seminars and conferences does
not constitute practice in law. The fourteenth respondent denied the
existence of its office in India and that it was practicing Indian law. It
also took the same stand as Respondent No.11 that regulatory framework
for advocates did not govern practice of foreign law. It denied that it is
operating a Legal Process Outsourcing office (LPOs) in India. Its
lawyers fly in and fly out of India on need basis to advice clients on
international transactions. To the extent Indian law is involved, such
matters are addressed by Indian lawyers. If the foreign law firms are
prevented from advice on foreign law, the transaction cost of Indian
clients for consultation on foreign law will increase. Other foreign law
firms have also taken more or less similar stand. Fifteenth respondent
stated that it is a Business Process Outsourcing (BPO) company providing
wide range of customized and integrated services and functions. The
sixteenth respondent also stated that it has no office in India and is only
rendering services other than practice of Indian law. The eighteenth
respondent stated that it does not have any office in India and does not
practice law in India. It only advises on non Indian law. Respondent
Nos.19, 26, 39 and 40 stated that they are limited law partnerships under
Laws of England. They do not have any law office in India. Respondents
Nos.20, 21, 24, 25, 27, 28, 30, 31, 32, 33, 34 and 38 also stated that they
do not have any office in India and do not practice Indian law. Indian
lawyers cannot advice on foreign laws and the requirement of Indian
litigants in regard is met by foreign lawyers. Its lawyers fly in and fly
out of India on need basis to advise the clients on international transactions.
To the extent Indian law is involved such matters are addressed by Indian
lawyers.
13. The respondent No.22 stated that it is an international law
firm but does not have any office in India. It advises clients on laws
other than Indian laws. Its India Practice Group advises clients 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
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[ADARSH KUMAR GOEL, J.]
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in Indian law. Respondent No.23 stated that it is only advising on matters
of English, European Union and Hong Kong laws. It has working
relationships with leading law firms in major jurisdictions and instructs
appropriate local law firms to provide local law advice. Respondent
No.29 stated that it is a limited law partnership registered in England and
Wales and does not have office in India. It does not represent parties in
Indian courts nor advises on Indian law. Respondent No.35 stated that
it does not maintain any office in India and its expertise in international
law. 36th Respondent stated that it does not practice Indian law and has
no office in India nor it operates any LPO. Its lawyers fly in and fly out
on need basis to advise clients on international transactions or matters
involving Australian laws or international Benches to which there is an
Indian component. Working of Indian laws is entrusted to Indian lawyers.
The 37th Respondent denied that it has any office in India or is running
LPO in India. It only advises with respect to regulatory laws other than
Indian law.
FINDINGS
14. The High Court upheld the plea of the foreign law firms to the
effect that there was no bar to such firms taking part in negotiations,
settling of documents and conducting arbitrations in India. There was
no bar to carrying on consultancy/support services in the field of protection
and management of intellectual, business and industrial proprietary rights,
carrying out market survey and research, publication of reports, journals
etc. without rendering any legal advice. This could not be treated as
practice of law in India. Referring to Section 2(1)(f) of the Arbitration
and Conciliation Act, 1996 (the Arbitration Act), it was observed that if
in international commercial arbitration, India is chosen as the seat of
arbitration, the foreign contracting party is bound to seek assistance from
lawyers of their own country on the contract. There could be no prohibition
for such foreign lawyers to advise their clients on the foreign law.
15. Judgment of the Bombay High Court in Lawyers Collective
(supra) was distinguished on the ground that setting up of law offices for
litigious and non litigious matters was different but if a foreign law firm
without establishing any liaison office in India offers advice to their clients
on foreign law, there was no legal bar to do so.
16. The Bombay High Court in its judgment observed:
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"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 carry
on the practise in non litigious matters without being enrolled
as Advocates under the 1961 Act ?
46. Before dealing with the rival contentions on the above
question, we may quote Sections 29, 30, 33 and 35 of the
1961 Act, which read thus:
29. Advocates to be the only recognised class of persons
entitled to practice law. - Subject to the provisions of this
Act and any rules made there under, there shall, as from
the appointed day, be only one class of persons entitled to
practise the profession of law, namely, advocates. (not
brought into force so far)
30. Right of advocates to practise. -Subject to provisions
of this Act, every advocate whose name is entered in the
State roll shall be entitled as of right to practise throughout
the territories to which this Act extends,
(i) in all Courts including the Supreme Court;
(ii) before any tribunal or person legally authorized to
take evidence;
(iii) before any other authority or person before whom
such advocate by or under any law for the time being in
force entitled to practise.
 BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS.
[ADARSH KUMAR GOEL, J.]
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33 . Advocates alone entitled to practise. -Except as
otherwise provided in this Act or in any other law for the
time being in force, no person shall, on or after the
appointed day, be entitled to practice in any Court or before
any authority or person unless he is enrolled as an advocate
under this Act.
35 . Punishment of advocates for misconduct - (1) Where
on receipt of a complaint or otherwise a State Bar Council
has reason to believe that any advocate on its roll has been
guilty of professional or other misconduct, it shall refer
the case for disposal to its disciplinary committee.
(1-A) The State Bar Council may, either of its own motion
or on application made to it by any person interested,
withdraw a proceeding pending before its disciplinary
committee and direct the inquiry to be made by any other
disciplinary committee of that State Bar Council.
(2) The disciplinary committee of a State Bar Council [***]
shall fix a date for the hearing of the case and shall cause
a notice thereof to be given to the advocate concerned
and to the Advocate-General of the State.
(3) The disciplinary committee of a State Bar Council after
giving the advocate concerned and the Advocate-General
an opportunity of being heard, may make any of the
following orders, namely:
(a) dismiss the complaint or, where the proceedings were
initiated at the instance of the State Bar Council, direct
that the proceedings be filed;
(b) reprimand the advocate;
(c) suspend the advocate from practice or such period
as it may deem fit;
(d) remove the name of the advocate from the State roll
of advocates.
(4) Where an advocate is suspended from practice under
Clause (c) of Sub-section (3), he shall, during the period
of suspension, be debarred from practising in any Court
or before any authority or person in India.
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(5) Where any notice is issued to the Advocate-General
under Subsection (2), the Advocate-General may appear
before the disciplinary committee of the State Bar Council
either in person or through any advocate appearing on
his behalf. Explanation-In this section, (Section 37 and
Section 38), the expressions "Advocate-General" and
"Advocate-General of the State" shall, in relation to the
Union territory of Delhi, mean the Additional Solicitor
General of India.
47 . The argument of the foreign law firms is that Section 29
of the 1961 Act is declaratory in nature and the said section
merely specifies the persons who are entitled to practise the
profession of law. According to the respondent Nos. 12 to 14,
the expression 'entitled to practise the profession of law' in
Section 29 of the 1961 Act does not specify the field in which
the profession of law could be practised. It is Section 33 of
the 1961 Act which provides that advocates alone are entitled
to practise in any Court or before any authority or person.
Therefore, according to respondent Nos. 12 to 14 the 1961
Act applies to persons practising as advocates before any
Court / authority and not to persons practising in non litigious
matters. The question, therefore, to be considered is, whether
the 1961 Act applies only to persons practising in litigious
matters, that is, practising before Court and other authorities ?
48. In the statements of Objects & Reasons for enacting the
1961 Act, it is stated that the main object of the Act is to
establish All India Bar Council and a common roll of
advocates and Advocate on the common roll having a right to
practise in any part of the country and in any Court, including
the Supreme Court. Thus, from the Statement of Objects and
Reasons, it is seen that the 1961 Act is intended to apply to
(one) persons practising the profession of law in any part of
the country and (two) persons practising the profession of
law in any Court including the Supreme Court. Thus, from
the statement of objects and reasons it is evident that the 1961
Act is intended to apply not only to the persons practising
before the Courts but it is also intended to apply to persons
who are practising in non litigious matters outside the Court.
 BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS.
[ADARSH KUMAR GOEL, J.]
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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 practice 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 appointed day
all these class of persons practising the profession of law,
would form one class, namely, advocates. Thus, Section 29 of
the 1961 Act clearly provides that from the appointed day
only advocates are entitled to practise the profession of law
whether before any Court / authority or outside the Court by
way of practise in non litigious matters.
50. Section 33 of the 1961 Act is a prohibitory section in the
sense that it debars any person from appearing before any
Court or authority unless he is enrolled as an advocate under
the 1961 Act. The bar contained in Section 33 of the 1961 Act
has nothing to do with the persons entitled to be enrolled as
advocates under Section 29 of the 1961 Act. A person enrolled
as an advocate under Section 29 of the 1961 Act, may or may
not be desirous of appearing before the Courts. He may be
interested in practising only in non litigious matters. Therefore,
the bar under Section 33 from appearing in any Court (except
when permitted by Court under Section 32 of the 1961 Act or
any other Act) unless enrolled as an advocate does not bar a
person from being enrolled as an advocate under Section 29
of the 1961 Act for practising the profession of law in non
litigious matters. The Apex Court in the case of Ex-Capt.
Harish Uppal (supra) has held that the right to practise is the
genus of which the right to appear and conduct cases in the
Court may be a specie. Therefore, the fact that Section 33 of
the 1961 Act provides that advocates alone are entitled to
practice before any Court / authority it cannot be inferred
that the 1961 Act applies only to persons practising in litigious
matters and would not apply to person practising in non
litigious matters.
51. It was contended that the 1961 Act does not contain any
penal provisions for breaches committed by a person
practicing in non-litigious matter and, therefore, the 1961
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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 1961 Act provides imprisonment for persons
illegally practicing in Courts and before other authorities, it
cannot be said that the 1961 Act does not contain provisions
to deal with the persons found guilty of misconduct while
practising in non litigious matters. Once it is held that the
persons entitled to practice the profession of law under the
1961 Act covers the persons practising the profession of law
in litigious matters as well as non-litigious matters, then, the
penal provisions contained in Section 35 of the 1961 Act would
apply not only to persons practising in litigious matter, but
would also apply to persons practising the profession of law
in non-litigious matters. The very object of the 1961 Act and
the Rules framed by the Bar Council of India are to ensure
that the persons practising the profession of law whether in
litigious matters or in non litigious matters, maintain high
standards in professional conduct and etiquette and,
therefore, it cannot be said that the persons practising in non
litigious matters are not governed by the 1961 Act.
52. Strong reliance was placed by the counsel for the
respondent No. 12 on the decision of the Apex Court in the
case of O.N. Mohindroo (supra) in support of his contention
that the 1961 Act applies only to persons practising the
profession of law before Courts / Tribunals / other authorities.
It is true that the Apex Court in the above case has held that
the 1961 Act is enacted by the Parliament in exercise of its
powers under entry 77 and 78 in List I of the Seventh Schedule
to the Constitution. However, the fact that entry 77 and 78 in
List I refers to the persons practising before the Supreme
Court and the High Courts, it cannot be said that the 1961
Act is restricted to 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,
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[ADARSH KUMAR GOEL, J.]
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the Parliament under entry 77 & 78 in List I of the Seventh
Schedule to make legislation only in respect of the advocates
practicing before the Supreme Court / High Courts and the
Parliament cannot legislate under that entry in respect of
advocates practising before the District Courts/ Magistrate's
Courts / other Courts / Tribunals / authorities and consequently,
the 1961 Act to the extent it applies to advocates practising in
Courts other than the High Courts and Supreme Court would
be ultra vires the Constitution. Such a narrow construction is
unwarranted because, once the Parliament invokes its power
to legislate on advocates practising the profession of law, then
the entire field relating to advocates would be open to the
Parliament to legislate and accordingly the 1961 Act has been
enacted to cover the entire field. In any event, the question as
to whether the persons practicing 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 O.N. Mohindroo (supra).
Therefore, the decision of the Apex Court in the above case
does not support the case of the contesting respondents.
........
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55. It was contended by the counsel for Union of India that if
it is held that the 1961 Act applies to persons practising in
non-litigious matters, then no bureaucrat would be able to
draft or give any opinion in non-litigious matters without being
enrolled as an advocate. There is no merit in the above
argument, because, there is a distinction between a bureaucrat
drafting or giving opinion, during the course of his employment
and a law firm or an advocate drafting or giving opinion to
the clients on professional basis.