Ashish Tripathi, DH News Service, New Delhi, Mar 13 2018, 22:21 IST
‘Neither can they get involved in non-litigation works like consultancy’
DH file photo.
The Supreme Court on Tuesday held that foreign lawyers and firms cannot practice law in India.
Neither can they get involved in non-litigation works like consultancy, the top court ruled.
A bench of Justices Adarsh Kumar Goel and U U Lalit relied upon the scheme in Chapter-IV of the Advocates Act to rule that advocates enrolled with the Bar Council alone are entitled to practice law.
“Regulatory mechanism for the conduct of advocates applies to non-litigation work also. The prohibition applies to any person in India, other than an advocate enrolled under the Advocates Act, and certainly applies to any foreigner also,” the bench said.
The court, however, said foreign lawyers may not be debarred from conducting arbitration proceedings arising out of international commercial arbitration if rules permitted.
“It is not possible to hold that there is absolutely no bar to a foreign lawyer for conducting arbitrations in India,” the court said.
The court said practising law included not only appearance in courts but also giving of opinion, drafting of instruments and participation in conferences involving legal discussion. “These are parts of non-litigation practice which is part of the practice of law,” the court said.
On foreign law firms, the bench said, “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 a group of individuals or juridical persons.”
The court said a plea that a foreign lawyer was entitled to practice foreign law in India also cannot be accepted.
Dealing with a batch of appeals arising out of Madras (2012) and Bombay High Court (2009) judgements, the court said the Bar Council of India or the central government may make appropriate rules on visit of any foreign lawyer on fly in and fly out basis as it amounts to practice of law if it is on regular basis.
The top court modified the Madras High Court’s conclusion that 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.
With regard to the BPO companies providing a range of customised and integrated services and functions to its customers, the court said those may not violate the provisions of the Advocates Act, only if their activities in pith and substance did not amount to the practice of law.
It would depend on facts of a case, the court said.