Delhi High Court: In a petition filed by South Korean national challenging the order dated 23-07-2020 passed by the Bar Council of India (BCI) (respondent) refusing his request for permission to be enrolled as an Advocate, Yashwant Varma, J., directed Bar Council of India to process the petitioner’s application for enrolment forthwith in accordance with law.
The petitioner has been residing in India for the past 16 years, upon his graduation in 2011, he was admitted to the B.A., LL.B. (Hons.) course by the National Academy of Legal Studies and Research, Hyderabad. He graduated and initially approached the Bar Council of Delhi (BCD) in February 2019 to obtain the necessary enrolment documents which was orally denied by the Bar Council of Delhi. BCD informed the petitioner that he would have to approach BCI and obtain a letter from that body granting him permission to be enrolled as an advocate with the BCD.
The petitioner made a representation to BCI and since no response was received on that representation, the petitioner filed a petition which was disposed of with a direction to the BCI to decide his representation. The petitioner received a communication from the Assistant Secretary cum Law Assistant of BCI, requiring him to respond to certain queries regarding citizenship, immigration status, nationality-based enrolment restrictions provided by the President of the Korean Bar and eligibility of foreign nationals to take the Korean National Bar Exam, etc. The BCI then passed the impugned order.
Bar Council of India submitted that in the absence of a provision like the proviso placed in Section 24(1)(a) in the applicable statutes promulgated by the Republic of Korea, the petitioner would not be entitled to enrolment. Section 24 confers a discretion in the BCI to grant an application for enrolment and that, consequently, is not mandatory for a State Bar Council to enroll a foreign national and, in any case, enrolment cannot be claimed as a matter of right. BCI also draws adverse inferences on account of its perceived reluctance of petitioner to obtain citizenship in India.
The petitioner sought a right which would inhere in any duly qualified foreign national intending to pursue law as a profession in India and a declaration that his right to practise law in the country is not barred by statute. The writ petition essentially revolved upon the meaning to be ascribed to the phrase “duly qualified” as appearing in the Proviso which stands placed in Section 24(1)(a).
In case of South Korea, the Court noted that the Attorney-At-Law Act while specifying the qualifications and disqualifications that must be possessed by a person to be an Attorney-at-Law does not lay in place a nationality requirement for the purposes of an individual being considered as qualified to be an Attorney-at-Law. The provisions of the NBE Act also do not prescribe that a foreign national would be disqualified from either taking the examination or being otherwise disqualified from pursuing the legal profession in South Korea.
In India, the Court noted that on ex-facie reading of the Proviso to Section 24(1)(a), it is apparent that a national of any other country may also be admitted as an advocate on a State Roll. The Proviso thus undoubtedly does not completely oust foreign nationals from consideration. The Proviso to Section 24(1)(a), and as a Proviso is intended to function and operate generally, creates an exception to a person seeking enrolment being a citizen of India. It essentially speaks of categories of persons who, though not Indian nationals, may vie for enrolment. It is to that category of foreign nationals that the Proviso speaks. This thus leads the Court to the irresistible conclusion that foreign nationals are not per se barred from being considered for enrolment under Section 24 of the Act.
On the aspect of reciprocity of nation-states, the Court noted that the provision enshrined in Section 47 of the Advocates Act mentions the subject of a foreign country becomes disentitled to practice the profession of law in India in a situation where the Union Government has found that the country to which the national belongs prevents citizens of India from either pursuing the legal profession or subjects them to unfair discrimination.
The Court concluded that petitioner’s prayer for enrolment was neither based on a claim of reciprocity between India and South Korea nor was it dependent upon the Parliament in South Korea adopting a provision identical to Section 24. His application for enrolment was liable to be considered solely based on the provisions made in Section 24 and thus the innumerable other queries and considerations which appear to have formed the subject matter of consideration of the BCI were not only unwarranted but also misconceived.
On a query put forth by BCI regarding right of Indian nationals to practise in South Korea, it was clarified that that in absence of a nationality bar, any interested individual could take the bar exam. Qualifications, disqualifications and other relevant provisions propounded in various provisions of the Korean law apply equally to South Koreans as well as Indian applicants clearly eliminating the discrimination concerns.
The Court concluded that no Korean statute raises a nationality bar disentitling an Indian citizen, otherwise qualified, from pursuing the legal profession. Therefore, in the absence of an explicit provision corresponding to the proviso to Section 24 would not have warranted the rejection of petitioner’s application.
Thus, the Court set aside the impugned order and directed the BCI to process the petitioner’s application for enrolment forthwith in accordance with law.
[Daeyoung Jung v Bar Council of India, 2023 SCC OnLine Del 3269, decided on 30-05-2023]
Advocates who appeared in this case :
Mr. Ashim Sood, Ms. Senu Nizar, Mr. Ekansh Gupta, Mr. Velpula Audityaa, Ms. Reaa Mehta, Mr. Kuberinder Bajaj, Ms. Payal Chandra and Mr. Rhythm Buaria, Advocates for the Petitioner;
Mr. Preet Pal Singh, Mr. Saurabh Sharma and Mr. Shivam Sachdeva, Advs. for the R-1;
Mr. Ajay Kumar Agarwal, Adv. for the R-2.