REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.7875-7879 OF 2015

BAR COUNCIL OF INDIA                                   …APPELLANT

VERSUS

A.K. BALAJI AND ORS.                      ...RESPONDENTS

WITH

CIVIL APPEAL NO.7170 OF 2015  (Association of Indian Lawyers   versus    M/s. London Court of

International Arbitration (LCIA) and ors.)

AND  

CIVIL APPEAL NO. 8028 OF 2015 (Global Indian Lawyers    versus    Bar Council of India & Ors.)

J U D G M E N T

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 1 AIR 2012 Mad 124  

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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 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 in and fly out" basis, for the purpose of giving legal advise to their  clients  in  India  regarding  foreign  law or  their own system of law and on diverse international legal issues.

(iii) Moreover, having regard to the aim and object of the  International  Commercial  Arbitration  introduced in the Arbitration and Conciliation Act, 1996, foreign lawyers  cannot  be  debarred  to  come  to  India  and conduct arbitration proceedings in respect of disputes arising  out  of  a  contract  relating  to  international commercial arbitration.

(iv)  The  B.P.O.  Companies  providing  wide  range  of customised and integrated services and functions to its  customers  like  word-processing,  secretarial support,  transcription  services,  proof-reading services,  travel  desk  support  services,  etc.  do  not come within the purview of the Advocates Act, 1961 or  the  Bar  Council  of  India  Rules.  However,  in  the event  of  any  complaint  made  against  these  B.P.O. Companies violating the provisions of the Act, the Bar Council of India may take appropriate action against such erring companies.”

2 2010 (2) Mah LJ 726

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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.

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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  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,

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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, 5

settling of documents and arbitrations in India, it will obstruct

the  aim of  making  India  a  hub  of  international  arbitration.

Many arbitrations with Indian Judges as arbitrators and Indian

lawyers are held outside India where foreign and Indian law

firms advise their  clients.   Barring the entry of  foreign law

firms for arbitrations in India will result in many arbitrations

shifting  to  Singapore,  Paris  and  London,  contrary  to  the

declared  policy  of  the  Government  and  against  national

interest.  However, its final stand in affidavits dated 19 th 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

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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.”  

                                   (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 7

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

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eleventh respondent is an American law firm and submitted

that   it  advises  clients  on  international  legal  issues  from

different countries.  Indian clients 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.

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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

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"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.  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.  

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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

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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:

“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,  

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(i) in all Courts including the Supreme Court;

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

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

33 .  Advocates  alone entitled to  practise. -Except as otherwise provided in this Act or in any other law for the time being in force, no person shall,  on or after the appointed day, be entitled to 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:  

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

(b) reprimand the advocate;

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

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

(4)  Where an advocate is  suspended from practice under Clause (c) of Sub-section (3), he shall, during the period of suspension, be debarred  from  practising  in  any  Court  or before any authority or person in India.

(5)  Where  any  notice  is  issued  to  the Advocate-General under 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

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applies only to persons practising in litigious matters, that  is,  practising  before  Court  and  other authorities ?

48. In the statements of Objects & Reasons for enacting  the  1961  Act,  it  is  stated  that  the main object of the Act is to establish All India Bar  Council  and  a  common roll  of  advocates and  Advocate  on  the  common  roll  having  a right to practise in any part of the country and in  any  Court,  including  the  Supreme  Court. Thus,  from  the  Statement  of  Objects  and Reasons,  it  is  seen  that  the  1961  Act  is intended to apply to (one) persons practising the profession of law in any part of the country and (two) persons practising the profession of law in any Court including the Supreme Court. Thus,  from  the  statement  of  objects  and reasons  it  is  evident  that  the  1961  Act  is intended  to  apply  not  only  to  the  persons practising  before  the  Courts  but  it  is  also intended  to  apply  to  persons  who  are practising in non litigious matters outside the Court.

49.  Apart  from the above,  Section 29 of  the 1961 Act specifically provides is that from the appointed day, there shall be only one class of persons entitled to 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

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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 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

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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, 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

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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.

…….. ……..

55. It was contended by the counsel for Union of  India  that  if  it  is  held  that  the  1961  Act applies  to  persons  practising  in  non-litigious matters, then no bureaucrat would be able to draft  or  give  any  opinion  in  non-litigious matters without being enrolled as an advocate. There  is  no  merit  in  the  above  argument, because,  there  is  a  distinction  between  a bureaucrat  drafting  or  giving  opinion,  during the course of his employment and a law firm or an advocate drafting or giving opinion to the clients  on  professional  basis.  Moreover,  a bureaucrat  drafting  documents  or  giving opinion  is  answerable  to  his  superiors, whereas, a law firm or an individual engaged in non  litigious  matters,  that  is,  drafting documents  /  giving  opinion  or  rendering  any other legal assistance are answerable to none. To avoid such anomaly, the 1961 Act has been enacted so as to cover all persons practising the profession of law be it in litigious matters or in non-litigious matters within the purview of the 1961 Act.

56.  The argument  that  the  1961 Act  and the  Bar Councils  constituted there under 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 v. Board of Management, Dayanand College  of  Law  reported  in  MANU/SC/5219/2006  : (2007) 2 SCC 202 held thus:

 It  may not  be correct  to say that  the Bar Council of India is totally unconcerned with the legal education, though primarily legal education may also be within the province

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of  the  universities.  But,  as  the  apex professional body, the Bar Council of India is concerned with  the standards of  the legal profession and the equipment of those who seek  entry  into  that  profession.  The  Bar Council of India is also thus concerned with the  legal  education  in  the  country. Therefore,  instead  of  taking  a  pendantic view of the situation, the State Government and  the  recommending  authority  are expected to ensure that the requirement set down  by  the  Bar  Council  of  India  is  also complied with.

Thus, when efforts are being made to see that  the  legal  profession  stand tall  in  this fast changing world, it would be improper to hold that the 1961 Act and the Bar Council constituted there under 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 nonlitigious  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

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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 there under, apart from the  powers  of  the  Court  to  take  appropriate action  against  advocates  who  are  found  guilty  of professional misconduct.

60. For all the aforesaid reasons, we hold that in the facts of the present case, the RBI was not justified in granting permission to the foreign law firms to open liaison offices in India under Section 29 of the 1973 Act. We further hold that the expressions ' to practise the profession of law' in 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.”

17. The Madras High Court agreed with the above view as follows :

“44. As noticed above, the facts of the case before the Bombay High Court were that the respondents which  were  foreign  law  firms  practising  the profession of law in US/UK sought permission to open their  liaison  office  in  India  and  render  legal assistance to another person in all litigious and non- litigious matters. The Bombay High Court, therefore, rightly held that establishing liaison office in India by the  foreign  law  firm  and  rendering  liaisoning

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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.”

18. The Madras High Court after above observation proceeded to

consider the matter as follows:

“45  .  However,  the  issue  which  falls  for consideration  before  this  Court  is  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.”

19. It was held :

“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

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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  India's  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

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(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 may or  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

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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 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

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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  play  a 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

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(a) all persons who were entered as an Advocate on the  roll  of  any  High  Court  under  the  Indian  Bar Council Act, 1926, immediately before the appointed date  and  (b)  all  other  persons  admitted  to  be Advocates on the roll of the State Bar Council under the Act on or after the appointed date. In terms of Section 24(1) of the Act, subject to the provisions of the  Act  and the  Rules  made thereunder,  a  person shall be qualified to be admitted as an advocate on a state roll if  he fulfils the conditions (a) a citizen of India,  (b)  has  completed  21  years  of  age  and  (c) obtained  a  degree  in  Law.  The  proviso  to  Section 24(1)(a) states that subject to the other provisions of the  Act,  a  National  of  any  other  country  may  be admitted as an Advocate on a State roll, if a citizen of India, duly qualified is permitted to practice law in that other country. In terms of Section 47(1) of the Act,  where  any  country  specified  by  the  Central Government by notification prevents citizens of India practicing the profession of Law or subjects them to unfair  discrimination in  that  country,  no subject  of any such  country  shall  be  entitled  to  practice  the profession of Law in India. In terms of Sub-Section (2) of Section 47, subject to the provision of Sub-Section (1),  the  Bar  Council  of  India  may  prescribe conditions,  if  any,  subject  to  which  foreign qualifications in law obtained by persons other than citizens of India shall be recognized for the purpose of  admission  as  an Advocate under  the Act.  Thus, Section  47  deals  with  reciprocity.  As  per  the statement of objects and reasons of the Advocates Act,  it  was  a  law enacted to  provide  one  class  of legal  practitioners,  specifying  the  academic  and professional qualifications necessary for enrolling as a practitioner of Indian Law, and only Indian citizens with  a  Law  Degree  from  a  recognized  Indian University could 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

27

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

28

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.”

RIVAL CONTENTIONS

20. Shri C.U. Singh, learned senior counsel for the Bar Council of

India submitted that Advocates enrolled with the Bar Council of India

are the only recognized class of persons entitled to practice law in

India.   Unless  any  other  law so  permits,  no  person can practice

before  any  ‘Court,  authority  or  person’  other  than  an  Advocate

enrolled under the Act.  In particular cases, the ‘Court, authority or

person’ may permit a person other than an advocate enrolled under

the Act to appear before him.  It was submitted that the expression

“practice profession of law” covered not only appearance before the

Court  but  also  opinion  work  which  is  also  known  as  chamber

practice.  The Ethics prescribed by the Bar Council of India covered

not only conduct in appearing before Court or authority but also in

dealing with the clients including giving legal  opinion, drafting or

29

participation in law conference.  If  a  person practices before any

‘Court,  authority  or  person’  illegally,  is  liable  to  punishment  for

imprisonment  which  may extend  to  six  months.   Thus,  the  view

taken by the Madras High Court that visit by a foreign lawyer on fly

in  and fly out  basis  to  give advice on foreign law or  to  conduct

arbitration in international commercial arbitrations was erroneous.

Reference has also been made to definition of the term ‘advocate’

under Section 2(a) of the Act.  Section 6 lays down functions of the

Bar  Council  including  admission  of  persons  as  advocates,

safeguarding rights, privileges and interests of advocates.  Section

17 lays down that every State Bar Council  shall  prepare a roll  of

advocates and no person can be enrolled in more than one State Bar

Council.  Section 24 lays down qualifications for admission on the

roll of a State Bar council.  The qualifications include the citizenship

of India, unless a person is national of a country where citizens of

India  are  permitted  to  practice.   One  is  required  to  have  the

prescribed qualification from India or out of India if such degree is

recognized by the Bar Council of India,  being a Barrister called to

the  Bar  before  31st December,  1976,  passing  of  articled  clerks

examination or any other examination specified by the Bombay or

Calcutta High Court or obtaining foreign qualification recognized by

the Bar Council of India are also the prescribed qualifications.  It was

submitted that even in other jurisdictions, persons other than those

30

enrolled with the concerned Bar Council are not allowed to practice.

Even short  term running of  legal  service  is  subject  to  regulatory

regime.

21. Learned counsel for the foreign law firms S/Shri Arvind Datar,

Sajjan Poovayya,  Dushyant  Dave,  learned senior  counsel  and Mr.

Nakul Dewan, learned counsel supported the direction of the Madras

High Court permitting foreign lawyers to render legal services on fly

in  and  fly  out  basis  and  also  with  reference  to  international

commercial arbitrations.  It  was submitted that Bar Council  could

come into picture only in respect of advocates enrolled with it.  It is

only  with  reference  to  appearance  before  the  Courts  or  other

authorities or persons that the regulatory regime of the Bar Council

may  apply  but  with  regard  to  non  litigation/advisory  work  even

those not enrolled as advocates under the Advocates Act are not

debarred.  It was also submitted by Shri Dewan that Advocates Act

applies  only  to  individuals  and  not  to  law  firms.   Provision  for

reciprocity applies only for enrolment under the Advocates Act and

not  for  casual  legal  services  on  fly  in  and  fly  out  basis  or  in

connection  with  international  commercial  arbitration.   Foreign

lawyers are regulated by the disciplinary regime applicable to them

and only  their Bar Councils could take action with regard to their

working in India also.  Practice of law in India did not cover advising

on foreign law.  Thus, if  by a pre-determined invitation, a foreign 31

lawyer  visited  India  to  advise  on  a  foreign  law,  there  is  no  bar

against doing so.

22. Certain  decisions  have  been  cited  at  the  Bar  to  which

reference  may  be  made.   In  Roel  versus  New  York  County

Lawyers Association3, the Court of Appeals of the State of New

York dealt with a case where a Mexican citizen and lawyer, who was

not a citizen of the United States nor a member of the New York Bar,

maintained  his  office  in  New  York  and  advised  members  of  the

public on Mexican law.  He did not give any advice as to New York

law.    The  majority  held  that  this  was  not  permissible.   It  was

observed:

“To  allow  a  Mexican  lawyer  to  arrange  the institution  of  divorce  proceedings  for  a  New York  resident  in  a  Mexican  court,  without allowing him to tell the client that the divorce might be invalid (Querze  v.  Querze, 290 N.Y. 13) or that it might adversely affect estate or other  property  rights  or  status  in  this  State (Matter of Rathscheck, 300 N.Y. 346), is to give utterly inadequate protection to him (See 70 Harv.L.Rev. 1112-1113).  Nor are we in anywise persuaded by the argument in the brief of the Association  of  the  Bar  that  there  is  any difference  between  the  right  of  a  Mexican lawyer to act and advise the public in divorce matters and the right (3 N.Y.2d 232) of foreign lawyers generally to act an advise with respect to foreign law. … …

The  complex  problem  posed  by  the activities  of  foreign attorneys here is  a long-standing one.  It  may well  be that

3 3 N.Y.2d 224 (1957)

32

foreign  attorneys  should  be  licensed  to deal  with  clients  in  matters  exclusively concerning foreign law, but that is solely within  the  province  of  the  Legislature. Our courts are given much control  over the lawyers  admitted to  the Bar of  our State; we have no control, however, over those  professing  to  be  foreign  law experts.

We see no substance in appellant’s claim that section 270 of the Penal Law when applied to him deprives him of liberty and property without due process of law, in that  the  statute  as  so  construed  is unreasonable  and  serves  no  public purpose.”

23. The minority view, on the other hand, held that:

“In  this  century  when the  United  States  has become the creditor nation of  the world and when  the  ramifications  of  our  industrial, commercial,  financial  and  recreational  lives extend  to  every  corner  of  the  global,  it  is especially  improbable  that  the  Legislature intended to preclude the giving of legal advice in this State to our citizens concerning these far-flung enterprises  by  trained  lawyers  from abroad  who  are  equipped  to  give  accurate information and opinions regarding them.  The customary  residential  requirements  for admission  to  the  Bar  would  in  themselves often preclude their becoming admitted to our Bar. … …

The  omission  of  the  Legislature  to  enact statutes licensing or regulating the conduct of foreign lawyers in practicing purely foreign law in  this  State,  does  not  indicate  that  such conduct is prohibited by sections 270 and 271 of  the  Penal  Law,  but  merely  that  the Legislature has not seen fit to subject them to regulation.   Whatever  the  merits  of  such

33

proposed legislation, it is not for us to enact it. If foreign lawyers came under section 270 and 271  of  the  Penal  Law,  it  would  stifle  their activities  to  the  detriment  of  the  large  and increasing  number  of  our  nationals  who engage  in  transactions  in  foreign  countries, inasmuch as it would be impossible for most of them to be admitted to practice in this State.”

24. In Appell  versus Reiner4, the Supreme Court of New Jersey

dealt with a case of  New York lawyer, who was not admitted to the

New Jersey Bar, giving legal services to New Jersey residents in a

matter  involving  the  extension  of  credit  and  the  compromise  of

claims held by New York and New Jersey creditors.   The Chancery

Division held that the New York lawyer could not advice in respect

of New Jersey creditors.   The Supreme Court of New Jersey held:-

“The  Chancery  Division  correctly  delineated the  generally  controlling  principle  that  legal services  to  be  furnished  to  New  Jersey residents relating to New Jersey matters may be furnished only by New Jersey counsel.  We nevertheless recognize that there are unusual situations in which a strict adherence to such a thesis  is  not  in  the  public  interest.   In  this connection  recognition must  be given to  the numerous  multi-state  transactions  arising  in modern times.  This is particularly true of our State,  situated  as  it  is  in  the  midst  of  the financial  and  manufacturing  center  of  the nation.   An  inflexible  observance  of  the generally  controlling  doctrine  may  well occasion  a  result  detrimental  to  the  public interest,  and  it  follows  that  there  may  be instances justifying such exceptional treatment warranting the ignoring of state lines.  This is such a situation.  Under the peculiar facts here

4 43 N.J. 313 (1964);  204 A.2d 146

34

present,  having  in  mind  the  nature  of  the services to be rendered, the inseparability of the New York and New Jersey transactions, and the substantial nature of the New York claim, we  conclude  that  plaintiff’s  agreement  to furnish services in New Jersey was not illegal and contrary to public policy.

It must be remembered that we are not here concerned with any participated by plaintiff in a court  proceeding.   What is  involved is  the rendering of advice and assistance in obtaining extensions  of  credit  and  compromises  of indebtedness. … …”

25. Again, there was a dissenting view as follows:

“… …Regulation of the interests of the public and  the  bar  requires  a  rule  of  general application.  In cases such as we have here, the only fair  and workable rule is  one which recognizes that the client’s matter is primarily a New Jersey one and calls for the engagement of a member of our bar for the legal services to be rendered here.  And, in that connection, in the interest of interstate amity, if an out-of- state  attorney  renders  legal  services  in  New Jersey which are a minor or incidental part of a total  problem  which  has  its  principal  and primary  aspects  in  his  state,  he  should  be allowed to recover in our courts for the work done in this jurisdiction.”

26. Mr.  Poovayya  referred  to  Rules  of  the  Indian  Council  of

Arbitration  which  could  apply  only  if  there  was  an  agreement

between the parties that the arbitration was to be in accordance

with the Rules of the Indian Council  of  Arbitration.  Rule 45 laid

down  that  parties  have  no  right  to  be  represented  by  lawyers

unless the arbitral tribunal considers it necessary and allows. 35

27.  Referring  to  the  Arbitration  Act,  it  was  submitted  that

international  commercial  arbitration is  defined under  Section  2(f)

which  covers  arbitration  relating  to  disputes  where  one  of  the

parties is  a national  or habitual  resident of  a country other than

India  or  a  body  corporate  incorporated  outside  India  or  an

association of body of individuals whose management and control is

exercised in a country other than India or a Government of a foreign

country.  In such cases, parties may agree to have an arbitrator of

any  nationality,  to  any  language  to  be  used  in  arbitration

proceedings,  to  any  place  of  arbitration.   Section  28(b)  permits

Arbitral Tribunal to decide disputes in accordance with rules of law

applicable to the substance of the dispute as agreed by the parties.

The  arbitrator  has  to  give  equal  opportunity  to  the  parties  to

present their case (Section 18).  Parties can agree on the procedure

to be followed (Section 19).  Section 34(2)(a)(iii) provides that an

award may be set aside, inter-alia, on the ground that the party was

unable to present its case in the arbitration proceedings.  Procedure

for  presenting  case  of  a  party  before  the  arbitrator  may  be

governed by agreement or by the procedural rules.   

28. Shri  Dushyant  Dave  referred  to  rules  of  certain  Arbitration

Institutions to the effect that the parties are free to be represented

by an outside lawyer.   It was submitted that by way of Convention

36

in  international  commercial  arbitrations,  there  cannot  be  any

compulsion to engage only a local lawyer.    Section 48(1)(b) of the

Arbitration Act provides that enforcement of a foreign award can be

refused if the parties were unable to present their case.  The New

York Convention Awards are governed by the First Schedule to the

Act.  Article-II provides for recognition of an arbitration agreement

between  the  parties.   Article-V(1)(b)  provides  that  if  the  party

against whom the award is invoked was not given proper notice or

could not present his case, the award cannot be enforced.  Section

53 of the Arbitration Act refers to Geneva Convention Awards which

is regulated by the Second Schedule to the Act containing similar

provisions.

29. Mr. Dave submitted that the Special Leave Petition arising out

of the Delhi High Court order is on the question whether London

Court of International Arbitration could use the expression “COURT”

had become infructuous as the respondent had closed its working

in India.  He, however, referred the following:

I) Handbook  of  ICC  Arbitration  –  Commentary, Precedents, Materials – Second Edition (Michael W. Buhler and Thomas H. Webster)

Article 21(4):  “The parties may appear in person or through duly authorized representatives.  In addition, they may be assisted by advisers.”

The authors’ comment is as follows:

37

“In an ICC arbitration, parties have the right to be represented by the persons of their choice.  A distinction  should  however  be  made  between “authorized  representatives”  and  “advisors”. Usually,  the  parties  have  attorneys  represent them in the arbitration.  Thus, an attorney may have both capacities, but this may not always be the case.  As an adviser,  he or she would not need a power of attorney.  On the other hand, as a representative of a party, he or she might need a power of attorney.  In arbitration.  The major centres  of  arbitration  do  not  appear  to  have restrictions  on  the  right  of  lawyers  from other countries to argue cases in those countries, with the possible exception of California.”

The footnote 31 is as follows:

“See Birbower, Montabano, Condon & Frank, P.C. v.  The Superior Court of Santa Clara, 949 P.2d 1 (Cal.  1998);  see also Holtzmann and Donovan, “United  States  Country  Report”   in  ICCA Handbook, Supp. 28 (Paulsson edn, 1999).  The California Rules of Court were modified in 2004 in  order  to  permit  any  US  qualified  lawyer  to represent  a  party  in  an  arbitration  (r.966). However,  it  remains  unclear  whether  lawyers admitted to foreign bars can represent parties in national or international arbitration.”

II) Arbitration  of  Commercial  Disputes  – International  and  English  Law  and  Practice (Andrew Tweeddale and Keren Tweeddale).

Representation of the parties

10.15.   The right to legal representation at trial has  existed  both  in  the  common  law  and  in international  treaties  for  centuries5.   However,

5 See, for example, art 42 of the Statute of the International Court of Justice which states: ‘1.  The parties shall be represented by agents.  2.  They may have the assistance of counsel or advocates before the Court.  3.  The agents, counsel, and advocates of parties before the Court shall enjoy the privileges and immunities necessary to the independent exercise of their duties.’  See also art 37 of the Hague Convention 1899 which states:  ‘The parties have the right to appoint delegates or special agents to attend the Tribunal, for the purpose of serving as intermediaries between them

38

the right to legal representation is not absolute. The  parties  may  agree  to  dispense  with  legal representation6.   Furthermore,  some  rules  of arbitration  prohibit  the  use  of  legal representation7.   In  international  commercial arbitrations  it  is  generally  accepted  that  the parties may choose their own advocate without necessarily choosing one qualified at the seat of the arbitration8.  However, in a few recent cases that principle has been challenged9.”

III) Redfern and Hunter on International Arbitration

“In general, the parties may also be represented by  engineers,  or  commercial  men,  for  the purpose of putting forward the oral submissions, and even for the examination of witnesses. It is not uncommon, where a case involves technical issues, for an engineer or other professional man to be part of the team of advocates representing a party at a hearing, although it is more usual for such technical experts to be called as witnesses

and the Tribunal.  They are further authorized to retain, for the defense of their rights and interests before the Tribunal, counsel or advocates appointed by them for this purpose.’ 6

Henry Bath & Son Ltd.   v.   Birgby Products [1962] Lloyd’s Rep 389; and see also the  English Arbitration Act 1996, s 36.

7 The arbitration rules of the Australian Football league, for example, limit legal representation.

8 See, for example, In the matter of an Arbitration between Lawler, Matusky and Skelly, Engineers and the Attorney General of Barbados (No.320 of 1981) 22 August 1983 where the High Court of Barbados held that there was a ‘common law right of everyone who is sui juris to appoint an agent for any purpose’.  The court held that this included the right to appoint a representative to appear as advocate on a party’s behalf in a commercial arbitration.

9 In the matter of an Arbitration between Builders Federal (Hong Kong) Ltd. and Joseph Gartner & Co., and Turner (East Asia) Pte Ltd (No. 90 of 1987) (1988) 2 MLJ 280 the Malaysian Judicial Commissioner Chan Sek Keong ruled that the respondents, who were a foreign company, could not select a counsel from their own country because Singapore’s Legal Profession Act operated as a bar to foreign lawyers from representing their clients in international arbitrations in Singapore. However,  in  June 2004 Singapore  finally  amended its  Legal  Profession  Act  to  eliminate  this restriction on representation by foreign lawyers in arbitrations in Singapore.  See also Birbrower, Montabano, Condon & Frank  v.  Superior Court of Santa Clara County, 1998 Cal LEXIS 2, 1998 WL 1346 (Cal 1/5/98)  where the court held that a New York lawyer representing a client in a Californian arbitration was not qualified to act for his client because he was not called to the Californian bar and therefore not entitled to recover his fees.  The court, however, stated that this principle would not apply to an international commercial arbitration.

39

in order that their opinions and submissions may be  tested  by  cross-examination.   However,  it may sometimes be convenient and save time if technical  experts  address  the  arbitral  tribunal directly as party representatives10.

The  Supreme  Court  of  California  held  in  1998 that  representing  a  party  in  an  arbitration without its seat in California was ‘engaging in the practice of law’ in that state.  It followed that a New  York  lawyer,  not  a  member  of  the Californian Bar, was not qualified to represent his client in a Californian arbitration; and was thus unable to recover his fee when he sued for it11. Fortunately the court stated that the rule did not apply  in  international  arbitration.   IN  England there is not, and never has been, any danger of a  similar  situation  arising12.   A  party  to  an arbitration may, in theory, be represented by his plumber,  his  dentist,  or  anyone  else  of  his choosing, although the choice usually falls on a lawyer  or  specialist  claims  consultant  in  the relevant industry13.”

IV) LONDON  COURT  OF  INTERNATIONAL ARBITRATION (LCIA) RULES (2014)

Article 18 – Legal Representatives

“18.1Any  party  may  be  represented  in  the arbitration  by  one  or  more  authorized  legal representatives  appearing  by  name before  the Arbitral Tribunal.

18.2 Until  the Arbitral  Tribunal’s  formation,  the Registrar may request from any party: (i) written proof of the authority granted by that party to any  legal  representative  designated  in  its Request  or  Response;  and  (ii)  written

10 Both the UNCITRAL RULES (Art4) and the LCIA Rules (Art18) make it clear that parties are  entitled to be represented by non-lawyers. 11 Birbrower, Montabane, Condon Frank  v.  The Superior Court of Santa Clara County, 1998 Cal  Lexis2; 1998 WL 1346 (Cal 1/5/98) 12 i.e. that only a member of the local bar should be entitled to represent a party in a judicial or quasi-judicial proceeding. 13 English Arbitration Act, 1996, s 36.  This reaffirms the previous common law position.

40

confirmation of the names and addresses of all such  party’s  legal  representatives  in  the arbitration.  After its formation, at any time, the arbitral Tribunal may order any party to provide similar  proof  or  confirmation  in  any  form considers appropriate.”

V) CHINA INTERNATIONAL ECONOMIC AND TRADE ARBITRATION  COMMISSIN  (CIETAC) ARBITRATION RULES.

Article 22  - Representation

“A party may be represented by its  authorized Chinese  and/or  foreign  representative(s)  in handling matters relating to the arbitration.  In such  a  case,  a  Power  of  Attorney  shall  be forwarded to the Arbitration Court by the party or its authorized representative(s).”

VI) ARBITRATION  RULES,  MEDIATION  RULES  OF INTERNATIONAL CHAMBER OF COMMERCE.

ARTICLE 26 – Hearings

“4.   The  parties  may  appear  in  person  or through  duly  authorized  representatives.   In addition, they may be assisted by advisers.”

VII) COMMERCIAL  ARBITRATION  RULES  AND MEDIATION  PROCEDURES  OF  AMERICAN ARBITRATION ASSOCIATION

R-26.  Representation

“Any  party  may  participate  without representation  (pro  se),  or  by  counsel  or  any other  representative  of  the  party’s  choosing, unless  such  choice  is  prohibited  by  applicable law.  A party intending to be so represented shall notify the other party and the AAA of the name, telephone  number  and  address,  and  email

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address  if  available,  of  the  representative  at least seven calendar days prior to the date set for the hearing at which that person is first  to appear.  When such a representative initiates an arbitration  or  responds  for  a  party,  notice  is deemed to have been given.”

VIII)ARBITRATION  RULES  OF  THE  SINGAPORE INTERNATIONAL ARBITRATION CENTRE (SIAC)

Party Representatives

“23.1Any  party  may  be  represented  by  legal practitioners  or  any  other  authorized representatives.   The  Registrar  and/or  the Tribunal  may require  proof  of  authority  of  any party representatives.

23.2 After  the constitution of  the Tribunal,  any change  or  addition  by  a  party  to  its representatives shall be promptly communicated in  writing  to  the  parties,  the  Tribunal  and  the Registrar.”

IX) RULES  OF  INTERNATIONAL  COMMERCIAL ARBITRATION  BY  INDIAN  COUNCIL  OF ARBITRATION

20. Party Representation and assistance

“At  the  hearing,  a  party  shall  be  entitled  to appear  through  Attorney,  Advocate  or  a  duly authorized  Advisor  or  Representative  or  in person, subject to such proof of authority to the satisfaction of the Registrar or the Tribunal.”

30. Shri C.U. Singh, learned senior counsel, by way of rejoinder,

opposed  the  submissions  of  learned  counsel  appearing  for  the

foreign  law  firms.   He  submitted  that  the  stand  of  the  Central

Government finally was to support the stand of the Bar Council of 42

India.  The argument that participation of foreign lawyers will be in

the interest of the country was raised by the foreign law firms only

as shown from para 51 of  the Madras High Court judgment.   He

submitted that the arbitrator was also an ‘authority’ before whom

only advocates enrolled in India alone could appear.  The arbitrator

could  record  evidence  and  summon  witnesses  through

Court(Section  27).  Rules  of  Arbitration  Institutions  have  to  be  in

conformity with the law of the land.  He also submitted that the

rules framed by the Bar Council of India under Section 49 define the

practice of law so as to cover even giving of opinion.

31. Shri Singh further pointed out that Ethics for the profession as

applicable in India are different from the Ethics applicable in other

countries. In this regard, it was submitted that Rule 36 in Part VI,

Chapter II of the BCI Rules prohibits direct or indirect advertising by

advocates, or solicitation by any means whatsoever.  Rule 18 bars

an  advocate  from  fomenting  litigation.  In  Bar  Council  of

Maharashtra  versus  M.V.  Dabholkar14,  this  Court  held  that

advertising was a serious professional misconduct for an advocate.

As against this,  in USA Rule 7.3 of the American Bar Association

Rules bars only in-person or live telephonic solicitation of clients,

but expressly permits lawyer-to-lawyer solicitation, as well as client

solicitation by written, recorded or electronic communication, unless

14 (1976) 2 SCC 291

43

the target of solicitation has made known to the lawyer his desire

not to be solicited, or the solicitation involved coercion, duress or

harassment.   The  US  Supreme  Court,  inter  alia,  in  Zauderer

versus Office of Disciplinary Counsel15 and in Shapero versus

Kentucky  Bar  Association16 struck  down  disciplinary  actions

against lawyers for soliciting clients through print advertisements or

hoardings.   In  UK,  Solicitors  Regulation  Authority(SRA)  is  a

regulatory  body  established  under  the  Legal  Services  Act,  2007.

Chapter 8 of the SRA Handbook permits publicity of the law firm but

prohibits solicitations.   

32. In India, with regard to Contingency fees, Rule 20 in Part VI,

Chapter II of the BCI Rules bars an advocate from stipulating a fee

contingent on the results of the litigation or from agreeing to share

the proceeds thereof.  Rule 21 prohibits practices akin to champerty

or  maintenance,  and  prohibits  an  advocate  from  buying  or

trafficking  in  or  stipulating  or  agreeing  to  receive  any  share  or

interest in an actionable claim.  In USA Rule 1.5 (c) of the ABA Rules

permits  lawyers  to  charge  contingency  fees,  except  in  certain

specified  cases  like  criminal  defence,  etc.   Fee-splitting

arrangements  between  lawyers  from  different  firms  are  also

permitted with some restrictions.   In U.K., Section 58 of the Courts

and Legal Services Act, 1990 permits “conditional fee agreements” 15 471 US 626 (1985)   16 486 US 466

44

except in criminal proceedings and family law matters and Section

58AA permits “damages-based fee agreements”, all of which entitle

legal practitioners to a share of the “winnings”.

33. In India, there are no rules framed by the Bar Council on the

subject ‘sale of law practice’. In U.S.A., Rule 1.17 permits law firms

or lawyers having private practice to sell their practice including the

goodwill.  In U.K., SRA Guidelines permit sale of practice as a going

concern or acquisition of a practice which is closing down.

34. In India, senior advocates are barred from interacting directly

with clients, and are not permitted to draft pleadings or affidavits,

correspond on behalf of clients, or to appear in court unassisted by

an advocate  (Part VI, Chapter I of the Bar Council of India Rules).  In

U.S.A., no such distinction or designations are made.  In U.K., there

appear to be no restrictions on Queen’s Counsel (QCs) similar to the

ones imposed by the Bar Council in India.  QCs are permitted to join

law firms as partners.   

35. In  India,  funding  of  litigation  by  advocates  is  not  explicitly

prohibited, but a conjoint reading of Rule 18 (fomenting litigation),

Rule  20  (contingency  fees),  Rule  21  (share  or  interest  in  an

actionable claim) and Rule 22 (participating in bids in execution,

etc.)  would strongly suggest that advocates in India  cannot fund

litigation  on  behalf  of  their  clients.   There  appears  to  be  no 45

restriction on third parties (non-lawyers) funding the litigation and

getting repaid after the outcome of the litigation.  In U.S.A., lawyers

are permitted to fund the entire litigation and take their fee as a

percentage  of  the  proceeds  if  they  win  the  case.   Third  Party

Litigation Funding/Legal  Financing agreements are  not  prohibited.

In  U.K.,  Section 58B of  the Courts  and Legal  Services  Act,  1990

permits  litigation  funding  agreements  between  legal  service

providers  and  litigants  or  clients,  and  also  permits  third  party

Litigation Funding or Legal Financing agreements, whereby the third

party can get a share of the damages or “winnings”.

36. In  India,  partnerships  with  non-lawyers  for  conducting  legal

practice  is  not  permitted.   In  U.K.,  Section 66 of  the Courts  and

Legal Services Act, 1990 expressly permits solicitors and barristers

to enter into partnerships with non-solicitors and non-barristers.

CONSIDERATION OF THE ISSUES

37. We  have  considered  the  rival  submissions.   Questions  for

consideration mainly arise out of directions in para 63 of the Madras

High  Court  judgment  which  have  already  been  quoted  in  the

beginning of this judgment. viz. :

(i) Whether the expression ‘practise the profession of  law’

includes only litigation practice or non-litigation practice

also; 46

(ii) Whether  such  practice  by  foreign  law  firms  or  foreign

lawyers is permissible without fulfilling the requirements

of Advocates Act and the Bar Council of India Rules;

(iii) If  not,  whether there is  a bar for the said law firms or

lawyers to visit India on ‘fly in and fly out’ basis for giving

legal advice regarding foreign law on diverse international

legal issues;

(iv) Whether there is no bar to foreign law firms and lawyers

from  conducting  arbitration  proceedings  and  disputes

arising  out  of  contracts  relating  to  international

commercial arbitration;

(v)  Whether BPO companies providing integrated services are

not covered by the Advocates Act or the Bar Council of

India rules.   

RE : (i)

38. In Pravin C. Shah versus K.A. Mohd. Ali17, it was observed

that right to practice is genus of which right to appear and conduct

cases is specie.  It was observed:  

“………The  right  of  the  advocate  to  practise envelopes a lot of acts to be performed by him in discharge of  his  professional  duties.  Apart  form appearing in the courts he can be consulted by

17 (2001) 8 SCC 650

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his  clients,  he  can  give  his  legal  opinion whenever sought for,  he can draft  instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions etc.     ……”

In  Ex. Capt. Harish Uppal versus Union of India18, same

view was reiterated.

39. Ethics of the legal profession apply not only when an advocate

appears before the Court. The same also apply to regulate practice

outside  the  Court.  Adhering  to  such  Ethics  is  integral  to  the

administration of justice.  The professional standards laid down from

time to time are required to be followed. Thus, we uphold the view

that practice of law includes litigation as well as non litigation.

RE : (ii)

40. We have already held that 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 non-litigation 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

18 (2003) 2 SCC 45

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also. The prohibition applicable to any person in India, other than

advocate enrolled under the Advocates Act, certainly applies to any

foreigner also.   

RE : (iii)

41. 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.  Bar Council  of India or Union of India are at liberty to

make appropriate rules in this regard.  We may, however, make it

clear that the contention that the Advocates Act applies only if  a

person is  practicing Indian law cannot be accepted.   Conversely,

plea 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 can also be not accepted. We do not find any

merit in the contention that the Advocates Act does not deal with

companies or firms and only individuals.  If prohibition applies to an

individual,  it  equally  applies  to  group  of  individuals  or  juridical

persons.

RE: (iv)

42. It is not possible to hold that there is absolutely no bar to a

foreign lawyer for conducting arbitrations in India.   If the matter is

49

governed  by  particular  rules  of  an  institution  or  if  the  matter

otherwise falls under Section 32 or 33, there is no bar to conduct

such proceedings in prescribed manner. If the matter is governed by

an  international  commercial  arbitration  agreement,  conduct  of

proceedings  may  fall  under  Section  32  or  33  read  with  the

provisions  of  the  Arbitration  Act.   Even  in  such  cases,  Code  of

Conduct, if any, applicable to the legal profession in India has to be

followed.  It is for the Bar Council of India or Central Government to

make a specific provision in this regard, if considered appropriate.   

RE: (v)

43. The  BPO  companies  providing  range  of  customized  and

integrated services and functions to its customers may not violate

the provisions of the Advocates Act, only if the activities in pith and

substance do not amount to practice of law.  The manner in which

they are styled may not be conclusive.  As already explained, 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.

44. In  view of  above,  we uphold  the  view of  the Bombay High

Court and Madras High Court in para 63 (i) of the judgment 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.   We,  however,  modify  the direction of  the Madras 50

High Court in Para 63(ii) that there was no bar 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 advice to

their clients in India regarding foreign law or their own system of law

and  on  diverse  international  legal  issues.   We  hold  that  the

expression  “fly  in  and  fly  out” will  only  cover  a  casual  visit  not

amounting to “practice”.   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.  

45. We  also  modify  the  direction  in  Para  63  (iii)  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.  We hold

that  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

51

the provisions of  the Arbitration Act,  foreign lawyers may not  be

debarred  from  conducting  arbitration  proceedings  arising  out  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.

46. We also modify the direction of the Madras High Court in Para

63(iv) 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.

We  hold  that  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.

The Civil Appeals are disposed of accordingly.

.….………………………………..J.   [ADARSH KUMAR GOEL]

.….………………………………..J.            [UDAY UMESH LALIT]

NEW DELHI; MARCH 13, 2018.

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