Judgment Intelligence
Disposed OfBar Council of India v. A.K. Balaji and Ors.
2018 INSC 235
Civil Appeal Nos. 7875-7879 of 2015 with Civil Appeal No. 7170 of 2015 and Civil Appeal No. 8028 of 2015
- Court
- Supreme Court of India
- Date of Decision
- 13 March 2018
- Bench
- Justice Adarsh Kumar Goel and Justice Uday Umesh Lalit
- Relevant Acts & Sections
- Advocates Act, 1961 - Sections 29, 32, 33 and 49A; Bar Council of India Rules; Arbitration and Conciliation Act, 1996 - Section 2(f)
Final Outcome
Civil appeals disposed of: the bar on foreign firms practising law upheld; the Madras High Court's directions on fly-in visits, arbitration and BPO services modified; the BCI or the Union free to frame rules (paras 44-46).
Source Supreme Court of India, www.sci.gov.in — judgment dated 13.03.2018
Key holdings
- Practice of law includes opinions, drafting and legal conferences, not only court appearances (paras 38, 40).
- The Advocates Act bars foreign lawyers from practising foreign law in India too (para 41).
- Only a casual 'fly in and fly out' visit is not practice; the BCI may decide disputes on this (para 44).
- Foreign lawyers may conduct international commercial arbitrations only under the stated conditions (para 45).
- BPO services that in substance amount to practice of law are covered by the Act (para 46).
Case explainer by NyayVidhan: an account of this judgment and the law it laid down, not the court's text. The judgment itself is the authoritative version.
Brief Facts
An advocate petitioned the Madras High Court against 32 foreign law firms, alleging that they practised law in India through legal process outsourcing, seminars and arbitrations in breach of Section 29 of the Advocates Act (paras 5-7). The High Court held in 2012 that foreign firms could not practise Indian law but could visit on a 'fly in and fly out' basis, conduct arbitrations and provide BPO services (paras 2, 14). The Bombay High Court had earlier held that the RBI wrongly let foreign firms open liaison offices (para 3). The Bar Council of India appealed (para 1).
Court's Findings
The right to practise covers not only appearing in court but also giving opinions, drafting instruments and taking part in legal conferences, as Pravin C. Shah and Harish Uppal held (paras 38, 40). Under Chapter IV of the Advocates Act only enrolled advocates may practise, and the bar applies to foreigners, to foreign law as much as Indian law, and to firms and companies as to individuals (paras 40-41). Professional ethics govern practice outside court too (para 39). A visit on a regular basis may amount to practice; a casual visit to advise may not, which is a question of fact (para 41). In institutional arbitrations or matters within Sections 32 and 33, foreign lawyers may not be barred from conducting international commercial arbitration, but they are bound by the Indian code of conduct (paras 42, 45). Labels of BPO services are not conclusive; the test is whether the work in substance is practice of law (para 43).
Legal Principle
Practice of law under the Advocates Act includes non-litigious work, and foreign lawyers and firms cannot practise in India without meeting it; only a casual fly-in, fly-out advisory visit falls outside, and any arbitration role is subject to the Indian professional code (paras 40-41, 44-45).
Precedents Relied Upon
- Pravin C. Shah v. K.A. Mohd. Ali (2001) 8 SCC 650
The right to practise is the genus and the right to appear and conduct cases a species; it includes advice and drafting.
- Ex. Capt. Harish Uppal v. Union of India (2003) 2 SCC 45
Reiterated the wider meaning of the right to practise law.