Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2012 Supreme(Mad) 918

IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HON BLE Mr. M.Y. EQBAL, CHIEF JUSTICE and THE HON BLE Mr. JUSTICE T.S. SIVAGNANAM
A.K. Balaji
versus
The Government of India,
rep. by its Secretary to Government,
Law Department,
4th Floor, A-Wing,
Shastri Bhawan,
New Delhi 110 001.
2. The Government of India,
rep. by its Secretary to Government,
Home Department, North Block,
Central Secretariat,
New Delhi 110 001.
3. The Government of India,
rep. by its Secretary to Government,
Finance Department, North Block,
Lok Nayak Bhavan, New Delhi.
4. The Government of India,
rep. by its Secretary to Government,
Department of External Affairs,
Akbar Bhavan, New Delhi 110 021.
5. The Government of India,
rep. by its Secretary to Government,
Income Tax Department,
7th Floor, Mayur Bhavan,
Connaught Circle,
New Delhi 110 055.
6. The Reserve Bank of India,
Central Office,
Centre 1, Word Trade Centre,
Cuffe Parade, Colaba,
Mumbai 400 005.
7. The Bar Council of India,
21, Rouse Avenue,
Institutional Area,
New Delhi 110 002.
8. The Bar Council of Tamil Nadu,
rep. by its Secretary,
High Court Campus,
Chennai 600 104.
9. Rouse,
Cisons Complex,
1st Floor, 150/86,
Montieth Road, Egmore,
Chennai 600 008, India.
10. Ashurst LLP,
New Delhi Liaison Office,
D-1, 6 Aurangzeb Road,
New Delhi 110 011.
11. Kelly Drye & Warren LLP,
C/o. Wakhariya & Wakhariya,
B-2, Taj Building, Wallace Street,
210, Dr.D.N.Road,
Mumbai 400 001, India.
12. Kennedys,
C/o. Tuli & Co.,
148, Golf Links,
New Delhi 110 003,
India.
13. De Heng Law Office,
C-9, Friends Colony East,
New Delhi 110 003,
India.
14. White & Case LLP,
1214, 12th Floor,
Maker Chambers V,
Nariman Point,
Mumbai 400 021,
India.
15. Integreon Managed Solutions Inc.,
Vatika Towers,
2nd Floor, Tower B,
Sector 54,
DLF Golf Course Road,
Gurgaon (Haryana 122 022,
India.
16. Linklaters LLP,
One Silk Street,
London,
EC2Y 8HQ,
United Kingdom.
17. Freshfields Bruckhaus Deringer,
65, Fleet Street,
London EC4Y 1HT,
United Kingdom.
18. Allen & Overy,
One Bishops Square,
London, E1 6AD,
United Kingdom.
19. Clifford Chance,
10, Upper Bank Street,
London E14 5JJ,
United Kingdom.
20. Wilmer Hale,
399, Park Avenue,
New York 10022,
United States of America.
21. Shearman & Sterling LLP,
801, Pennsylvania Avenue,
NW Suite 900,
Washington, DC 20004-2634,
United States of America.
22. Herbert Smith LLP,
Exchange House,
Primrose Street,
London, EC2A 2HS,
United Kingdom.
23. Slaughter and May,
One Bunhill Row,
London, EC1 Y 8 YY,
United Kingdom.
24. Hogan & Hartson,
555, Thirteenth Street, NW,
Washington, DC 20004,
United States of America.
25. Davis Polk & Wardwell,
450 Lexington Avenue,
New York, NY 10017,
United States of America.
26. Eversheds,
1 Wood Street,
London, EC2V 7Ws, United Kingdom.
27. Akin Gump Strauss Hauer & Feld LLP,
One Bryant Park,
New York, NY 10036,
United States of America.
28. Paul, Weiss, Rifkin, Wharton & Garrison,
1285 Avenue of the Americas,
New York, NY 10019-6064,
United States of America.
29. Norton Rose LLP,
3 More London Riverside,
London, SE1 2AQ,
United Kingdom.
30. Pillsbury Winthrop Shaw Pittman,
1540 Broadway,
New York, NY 10036 4039,
United States of America.
31. Wilson Sonsini Goodrich & Rosati,
650 Page Mill Road,
Palo Alto, CA 94304,
United States of America.
32. Arnold & Porter LLP,
555 Twelfth Street, NW,
Washington, DC 20004-1206,
United States of America.
33. Covington & Burling LLP,
The New York Times Building,
620 Eighth Avenue,
New York, NY 10018-1405,
United States of America.
34. Perkins Coie,
1888 Century Park E,
Suite 1700, Los Angeles,
California 90067-1721,
United States of America.
35. Loyens & Loeff,
1, Avenue Franklin D.Roosevelt,
75008 Paris,
France.
36. Freehills,
MLC Centre,
19 Martin Place,
Sydney NSW 2000,
Australia.
37. Clayton Utz.,
Levels 19-35,
No.1 O Connell Street,
Sydney NSW 2000,
Australia.
38. Mayer Brown LLP
71 S.Wacker Drive,
Chicago, IL 60606,
United States of America.
39. Clyde & Co.,
51, Eastcheap,
London,
EC3M 1JP,
United Kingdom.
40. Bird and Bird LLP
15, Fetter Lane,
London EC4A 1JP,
United Kingdom.
41. Women Lawyers Association,
rep. by its Secretary Mrs.V.Nalini,
High Court Buildings,
Chennai 104.
(R41 impleaded as per order of Court dated 07.07.2010 in M.P.No.2 of 2010 in W.P.No.5614 of 2010) W.P. No.5614 of 2010 and M.P. Nos.1, 3 to 5 of 2010
Decided On : 21.02..2012

Advocates Appeared:
For Petitioner:Mr.AR.L.Sundaresan, Senior Counsel for Mr.R.Ezhilarasan & Mr. N. Karthikeyan For Respondents 1 to 6:Mr.M.Ravindran, Addl. Solicitor General assisted by Mr.P.Chandrasekaran, SCGC For Respondent 7:Mr.P.S.Raman, Senior Counsel for Mr.K.Venkatakrishnan For Respondent 8:Mr.A.Navaneethakrishnan, Advocate General for Mr.S.Y.Masood For Respondent 9: Ms.P.T.Asha, for M/s.Sarvabhauman Associates
For Respondents 10, 16, Mr.Arvind P.Datar, Senior Counsel 19, 26, 39 & 40 & R.Muthukumarasamy, Senior Counsel for Mr.M.Rishi Kumar
For Respondent 11:: Mr.Satish Parasaran
For Respondent 12:: Notice Sent. Service Awaited.
For Respondents 14, 20,:: Dr.Abhishek M.Singhvi 21, 24, 25, 27, 28 & 30 for M/s.R.Senthil Kumar & Rahul Balaji
For Respondents 31, 32,::Mr.A.L.Somayaji, Senior Counsel 33, 34 & 38 for M/s.R.Senthil Kumar & Rahul Balaji For Respondent 15:: Mr.Sriram Panchu, Senior Counsel for Mr.B.N.Suchindran
For Respondent 23:: Mr.R.Yashod Vardhan, Senior Counsel for Mr.Sundar Narayanan
For Respondents 22 & 29:: Mr.R.Krishnamoorthy, Senior Counsel for Mr.T.K.Bhaskar
For Respondent 41:: Ms.D.Prasanna
For Respondents 36 & 37:: Mr.K.S.Natarajan
For Respondents 17 & 35:: Mr.Vineet Subramani

Ratios
a. Foreign law firms or foreign lawyers cannot not 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.
b. There is no bar either in the Advocates Act, 1961 or in the Bar Council of India 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 and so they can do that.
c. Foreign lawyers cannot be debarred from coming to India and conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration.

Headnote:(A)Advocates Act, 1961(--------)-Sec.24, 29-Advocates-Law-Practise-Consultancy-International law- Foreign law-Foreigner-Arbitration-Petitioner had sought to restrain the foreign law firms from practicing any of the laws in India either in the Courts or in their chambers which was resisted by some of the respondents/foreigners by contending that they were only advising to their country people on their laws and engaged in international arbitration, foreign laws were not taught in Indian Courts and in their country also Indian lawyers were permitted to practice law and thus there were reciprocity and thereby justified their activities in India-Held, foreign law firms or foreign lawyers could not 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-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-Foreign lawyers could not be debarred from coming to India and conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration-Writ petition was disposed accordingly.
       (B)Advocates Act, 1961(--------)-Sec.24, 29-Advocates-Law-Practise-Consultancy-International law- Foreign law-Foreigner-Arbitration-Foreign law firms or foreign lawyers cannot not 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-There is no bar either in the Advocates Act, 1961 or in the Bar Council of India 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 and so they can do that-Foreign lawyers cannot be debarred from coming to India and conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration.
       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. Para 63

O R D E R

The Hon ble the Chief Justice

This writ petition has been filed under Article 226 of the Constitution of India for the issuance of a Writ of Mandamus directing the respondents 1 to 8 to take appropriate action against respondents 9 to 40 or any other Foreign Law Firm or Foreign Lawyers, who are illegally practising the Profession of Law in India, and for a further direction to forbear them from having any legal practice either on the litigation side or in the field of non-litigation and commercial transactions, in any manner whatsoever within the territory of India.

2. The grounds on which the writ petitioner places his reliance are summarized in a nutshell herein below :-

Enrolment :

(a) It is stated that the writ petitioner is an active practitioner of law having enrolled himself in the State Roll maintained by the Bar Council of Tamil Nadu as per Section 17 of the Advocates Act, 1961. It is stated that to practice the profession of law in India, a person should be a citizen of India and should possess a Degree in Law obtained from a Recognised University within the Territory of India. It is further stated that Nationals of any other country may also be admitted as an Advocate on the State Roll, if citizens of India duly qualified are permitted to practice law in such other country as per the rule of reciprocity contained under Section 47 of the Advocates Act, 1961. It is also stated that those persons who have obtained degree of law from any University outside the Territory of India may also be permitted to practice the profession of law in India provided that the said degree is recognised by the Bar Council of India and subject to such conditions as may be imposed by the Bar Council of India from time to time. The writ petitioner, prima facie, states that the Law Graduates from India are not allowed to practice the profession of law in United Kingdom, United States of America, Australia and various other foreign nations.That apart, the procedure for Indian Lawyers to practice in foreign countries is far more cumbersome and very costly, and there are also very many restrictions like qualifying tests, prior experience, work permits, etc., but no such procedures are contemplated in the Advocates Act, 1961 in respect of foreign lawyers who intend to practice law in India. The Act simply provides that a foreigner may be admitted as an Advocate, if Indian nationals are permitted to practice law in his/her country.It is stated that allowing entry of foreign law firms without any reciprocal arrangement similar to that of the arrangements prevailing in those foreign countries should not be entertained, and foreign law firms should not be allowed to exploit the Indian legal market without actually opening up their domestic markets to the Indian lawyers.

Legal Bar :

(b) It is stated that in the absence of enrolment in any of the State Bar Councils in accordance with the provisions of the Advocates Act, 1961, the foreigners are not entitled to practice the profession of law in India on account of the bar contained under Section 29 of the Advocates Act. While the legal position is such, under the guise of LPO and conducting seminars and arbitrations, the foreign lawyers are visiting India under Visitor s Visa and are earning money from their clients in India. By doing so, they also violate the provisions of Income Tax Laws and Immigration Laws, and also cause loss of revenue to our country s Exchequer. They have also opened up their offices in India and are actively doing legal practice in the fields of Mergers, Takeovers, Acquisitions, Amalgamations, etc.

Disciplinary Authority :

(c) It is further stated that the legal profession in India is governed by the various provisions of the Advocates Act, 1961 and, the disciplinary rules and regulations, code of conduct and professional ethics framed and practiced from time to time. There is also a hierarchy of disciplinary authorities such as the State Bar Council, Bar Council of India,

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2012 Supreme(Mad) 918

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