Above: Supreme Court/Photo: Anil Shakya

The case of foreign lawyers practicing in India and the procedural issues guiding them case up before the Supreme Court bench of Justices Adarsh Kumar Goel and Uday Umesh Lalit on Monday (January 29).

The issue has been taken to court by the Bar Council of India.

On Monday, the counsel for opposing party A K Balaji submitted that the Madras High Court had said that foreigners (lawyers) can come in on a case-to-case-basis, but not settle and practice here. He specified that practice of law pertains to appearing before a court.

The court observed that this has been practised without any regulation. Once even women were not allowed to practice law, that was allowed after an Allahabad High Court judgment.

The issue has come up from a writ petition filed for the issuance of a Writ of Mandamus directing the respondents to take appropriate action against other respondents or any other foreign law firm or foreign lawyers, who are illegally practising the profession of law in India, and for a further direction to forbid them from having any legal practice either on the litigation side or in the field of non-litigation and commercial transactions, in any manner whatsoever within the territory of India.

The court observed that the parties have the authority to choose the law but parties do not have the authority to choose a lawyer from foreign land.

The bench asked: “Hypothetically, if two British parties choose India as a seat and English law is to be followed as chosen by party, what then?”

The counsel for the foreign firms submitted that the Madras High court judgment validating fly-in-fly-out situation for foreign firms should not be disturbed. He said that in accordance with court rules anybody can practice anywhere in India if he is enrolled on any state roll. This confers a right to practice. Reading in light with an international arbitration, where one of the party is not a resident of India, shouldn’t he be allowed to choose his lawyer from his country?

The bench drew the counsel’s attention to Section 33 of the Advocates Act.

The counsel said the Bombay High Court says law covers the ambit of litigation and non litigation work.

He referred to the Arabinda Bose (Rishi Aurobindo) case, wherein the petitioner wasn’t allowed to practice in Calcutta even though he was enrolled at Supreme Court. He said if someone is barred to practice then there should be an extraordinary reason. And not with corporate work.

The whole crux of advocates act deals with appearance in courts. He referred to the Mahipal Singh Rana case and said that actual appearance is prohibited by a foreign entity.

He pointed out that CAs have been doing extensive legal work.

At that Justice Lalit said: “Everything is perfect, but for Section 30.”

The counsel said: “The interpretation can’t be that if you’re not an advocate, you’re barred to touch the field anything related to law.”

Justice Goel said: “Act and plead is the monopoly for an advocate.”

The counsel said: “Anyone can act as an advisory for anyone, irrespective if he’s an advocate or not, provided he’s well versed with the field. For example, one has studied two years BGL and did not take third year to become a lawyer which entitles the person the right to appear before the court.

At this Justice Goel commented that this structure was followed till 1969, where you can take up two years of BGL and third year to complete the law degree.”

The counsel said: “Practising the profession of law confines to appear in court.”

The matter continues tomorrow.

—India Legal Bureau