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Introduction
The phrase ‘practice and profession of law’ were a matter of much discussion. The Hon’ble Supreme Court of India recently delivered the judgment in Bar Council of India versus A K Balaji and Ors wherein this ambiguity was clarified. The Court specified what this term actually means in several scenarios. This decision has opened a new path for foreign lawyers and law firms to practice law in India with relative freedom as compared to before. This judgment has opened up the path for the foreign lawyers to practice the foreign law in India, as well as has allowed the foreign law firms to enter India and practice in India. Another avenue this has opened up is by allowing the foreign lawyers to participate in the arbitration proceedings in India. The number of options this judgment has opened is innumerable. The decision itself is preceded by a great deal of procedural history, which when presented before the Supreme Court for decision over it, prompted a swift and just response.
Procedural History
The case was initiated when a writ petition was filed in the Madras High Court. This writ petition made out as many as forty respondents in the petition, of which a little more than thirty respondents were foreign law firms which were chalked up in this petition. The directions which were sought by the petitioner from the Madras High Court were against the foreign law firms or the foreign lawyers, which as the petitioner alleged, were practicing the legal profession in India, while the petitioner also alleged that they were not allowed to do the same.
The Judgement of the Madras High Court was in the favour of the petitioner wherein the Court held that the foreign law firms or the foreign lawyers can not pursue the legal profession in India until and unless the requirements laid down in the Advocate’s Act, 1961 are satisfied, alongside the requirements laid down in the Bar Council of India Rules. This restriction was placed regardless of whether the profession being pursued by the foreign lawyer was of a litigation nature or not. The restriction was imposed uniformly. Additionally, the Court also held that the foreign law firms or the foreign lawyers can only visit India for a temporary period and may only enter the country to tender advice to the clients in India, and may do so on a ‘fly-in and a fly-out basis’. The advice could either be on the foreign law or the diverse international legal issues.
Although in one part of the judgment, the Court held that theforeign lawyers cannot be debarred from entering the country, the same was inthe context of the arbitration proceedings for the disputes which had arisenout of a contractual obligation and the same had been for internationalcommercial arbitration.
However, prior to the case appeared before the Hon’ble Supreme Court of India on appeal, another judgment was delivered by the Bombay High Court in the same matter, but in a different case. The major contention in the case before the Bombay High Court was a little different. The Reserve Bank of India had already granted permission to few of the foreign law firms to open their liaison offices in Mumbai. This permission given by the Reserve Bank of India was challenged and presented before the Bombay High Court to give its opinion on whether the foreign lawyers practising in non-litigious matters amounted to practising the profession of law under Section 29 of the Advocates Act, 1961.
Issues
The issues which the Hon’ble Supreme Court was presented with were:
- Whether ‘practising theprofession of law’ included litigious as well as non-litigious matters?
- Whether foreign lawyers areallowed to practice law in Indian Courts?
Held
After a brief perusal of the judgment delivered by the Supreme Courtit would seem that the ratio laid down by the Court is more or less the same asthe decision of the Madras HC in its judgment over the matter. However, thereare indeed some slight changes that the Supreme Court has introduced to thejudgement. The Supreme Could held that indeed, ‘practice the profession oflaw‘ did include both the litigation as well as non-litigious practice. TheSupreme Court concluded that the right to practice was a broader genus, wherethe right to appear before the Court and argue before the Court would fallwithin the scope of this right and form the species in the same line. Thisobservation of the Supreme Court falls right in line with the principles whichwere followed by the High Courts of Madras and Bombay. The Supreme Court didnot take much effort to deviate from this holding of the lower courts in thisregard.
The Supreme Court further held after perusing Chapter IV of the Act the Advocates Act, 1961 that it would be prudent that only the lawyers who are registered with the Bar Council of India are allowed to practice in the Courts of India. This implied that the foreign lawyers may indeed appear before the Indian Courts, but with only the prior permission from the Court or Tribunal.
Further, the Court held that the foreign lawyers may not be debarredfrom appearing in Indian Courts for arbitral proceedings provided that thegeneral rules are applied to the conduct of foreign lawyers.
Analysis
The judgment in Bar Council of India versus A K Balaji and Ors is indeed a new avenue that has allowed the foreign lawyers and law firms to explore India and to approach and begin to practice here. However, the Supreme Court has also given a concrete shape to the definition of ‘legal profession’ in India. After this judgment, legal profession is not only confined to appearing before the Courts but also includes the other works related to the legal profession, such as tending legal opinion, drafting instruments or even participating in conferences where any form of legal discussion is ongoing. The broadened and solidified scope of the legal profession has made the practice for lawyers a little easy and has also opened the legal profession to the foreign lawyers. This may help to introduce a change in the practice.
