Case BriefsHigh Courts

Punjab and Haryana High Court: Rajiv Narain Raina, J. dismissed a petition in oral judgment challenging Section 7 of Legal Education Rules, 2008 (LER) framed by Bar Council of India, New Delhi.

The petitioner is a law graduate and postgraduate from Panjab University, Chandigarh. The petition filed challenges Section 7 of LER which states that a law graduate candidate to be admitted to rolls of the Bar must possess 45 per cent marks in graduation. A clarification passed by LER dated 13-09-2009 maintains that a candidate who scores below 45% in Graduation level in LL.B. but possesses more than 45 per cent marks in post graduation is eligible to appear for the rolls of the bar. The petitioner has failed to achieve the benchmarks set by Bar Council of India as she has achieved 44.70 per cent in Graduation and 40.87 per cent marks in post-graduation. Petitioner does not qualify for the relaxation either.

Counsel for petitioner, Lalit Kumar Sharma argued that minimum qualifying marks shall not automatically disentitle the person to get admission but only order the person to fulfill the conditions in institutional criteria evolved by institutions. Arguing further the counsel states that the Bar has fixed minimum required marks for license but it has self-imposed restrictions in lowering the merit in educational qualifications of LL.B. and LL.M. below 45% in aggregate of marks.

Counsel for the respondent, Mr Brar urged that the Bar has refused to admit candidates for the roll of Bar who possessed less than 45% marks.

The Court refused to entertain the submission of counsel for the petitioner that if university could enroll the petitioner to its LL.B. course despite her minimum marks, then per force, the Bar Council should be bound by admission for award of licence to practice law. It was opined by the Court that admission to the course and admission to the rolls of Bar are not same thing.

The Court advised the petitioner that her options are open in the teaching career and she could use her degree elsewhere but the Bar could not concede to her request. The Court dismissed the petition holding that it was not possible to accept the request of the petitioner that her career would be ruined and she would not be able to practice as an Advocate in courts of law. [Kitti Chhabra v. Bar Council of Punjab and Haryana, 2019 SCC OnLine P&H 2189, decided on 14-10-2019]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of Devan Ramachandran, J., allowed a writ petition for recognizing photo identity cards issued by the bar councils as a valid identity proof.

The petitioner, a practicing Advocate on the Rolls of the Bar Council of Kerala had remonstratively accused the respondent of having acted unfairly as it refused to recognize and accept the photo identity cards issued by the Bar Council of Kerala as also that of the other States, as a valid proof of identity to undertake journey on trains in reserved seats.

The grievance impelled by the petitioner was that even though several categories of identity cards were accepted by the respondent, the photo identity cards issued by the various Bar Councils in India were expressly excluded even though the said identity cards were issued by the various Bar Councils under the provisions of the Advocates Act, 1961.

The contentions of the respondent were that firstly adequate numbers of ID proofs had already been prescribed and secondly there was no uniformity in the formats of cards issued by various Bar Councils by virtue of it being a non-centralized body which consequently brought into question its veracity.

Consequently the respondent agreed to the fact that they have had harboured a wrong impression as to the statutoriness of the Bar Councils as the correct position was now clear to them hence they had no objection in accepting the identity cards, with a condition that the respective Bar Councils were obligated to answer any query that could have arisen with respect to individual identity cards in order to check any legitimate suspicion as to its authenticity.

The Court concluded by saying that being statutory bodies, it enjoins them to ensure the rectitude of the cards issued by them as and when required and directed the respondent to notify the stated identity cards as a valid proof of identity for train journey within two months from the date of judgment.[T.S. Shyam Prasanth v. The Secretary, Railways, 2018 SCC OnLine Ker 3235, order dated 08-08-2018]

 

Case BriefsSupreme Court

Supreme Court: In a Judgment pronounced by Dipak Mishra, CJ for the Full Court comprising of himself and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ., the Supreme Court held an advocate on the panel of Assistant Government Advocates was not ‘in service’ of the Bihar State Government.

The petitioner, State Election Commissioner (Bihar), filed an appeal against the decision of Patna High Court, wherein the order of the Commission disqualifying Respondent 1 from the post of Member in the Panchayat Samiti was quashed. Respondent 1 was empanelled as an Assistant Government Advocate by the Bihar State Government. The State EC had based its order of disqualifying Respondent 1 on Section 139(1) (c) of Bihar Panchayat Raj Act, 1993 which disqualifies a person from holding the post of Member of the Panchayat Samiti if he is in service of Central or State Government or any local Authority. The State EC held that since Respondent 1 was receiving fees for the cases conducted by him from the Government, he would be deemed to be in service of the State. The Single Judge observed that the appointment of a Government Pleader is governed by an executive instruction which is a tenure appointment; he remains a legal practitioner for all purposes and intent. The relationship between the State and the Assistant Government Pleader is that of ‘lawyer and client’ and not of ‘master and servant’. Further, the expressions “in service” of the State Government and holding “office of profit” in State Government were not synonymous; a person may hold an office of profit in the State but that doesn’t necessarily mean that he is in service of the State Government.

Supreme Court noted that the key word in issue was ‘service’ as mentioned in Section 139(1)(c) and (d). The Court thought it apposite to restate the legal position regarding the distinction between “office of profit” and “service under the Government”. The Court revisited a catena of Judgments to ultimately find favour with the distinction as brought out by the Single Judge. It was observed that conduct of an advocate is subject to discipline of the Bar Council, and as such Respondent 1 was not amenable to any disciplinary proceedings under the State Government. There was no master-servant relationship. Further, even if some remuneration was attached to the office, Respondent 1 could not be treated to be in service of the State Government. In view of such conclusion, the appeal preferred by the State EC was dismissed. [State Election Commissioner, Bihar v. Janakdhari Prasad,2018 SCC OnLine SC 659, decided on 03-07-2018]

Case BriefsSupreme Court

Supreme Court: In a crucial verdict, the bench of AK Goel and UU Lalit, JJ held that foreign law firms/companies or foreign lawyers cannot practice profession of law in India either in the litigation or in nonlitigation side.

The Court explained:

“practicing of law includes not only appearance in courts but also giving of opinion, drafting of instruments, participation in conferences involving legal discussion. These are parts of non-litigation practice which is part of practice of law. Scheme in Chapter-IV of the Advocates Act makes it clear that advocates enrolled with the Bar Council alone are entitled to practice law, except as otherwise provided in any other law. All others can appear only with the permission of the court, authority or person before whom the proceedings are pending. Regulatory mechanism for conduct of advocates applies to non-litigation work also. The prohibition applicable to any person in India, other than advocate enrolled under the Advocates Act, certainly applies to any foreigner also.”

“Fly in and fly out” basis:

  • Visit of any foreign lawyer on fly in and fly out basis may amount to practice of law if it is on regular basis. A casual visit for giving advice may not be covered by the expression ‘practice’.
  • In case of a dispute whether a foreign lawyer was limiting himself to “fly in and fly out” on casual basis for the purpose of giving legal advice to their clients in India regarding foreign law or their own system of law and on diverse international legal issues or whether in substance he was doing practice which is prohibited can be determined by the Bar Council of India.
  • Bar Council of India or Union of India will be at liberty to make appropriate Rules in this regard including extending Code of Ethics being applicable even to such cases.

Bar on conducting arbitration in India:

  • There is no absolute right of the foreign lawyer to conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration.
  • If the Rules of Institutional Arbitration apply or the matter is covered by the provisions of the Arbitration Act, foreign lawyers may not be debarred from conducting arbitration proceedings arising out of international commercial arbitration in view of Sections 32 and 33 of the Advocates Act. However, they will be governed by code of conduct applicable to the legal profession in India.
  • Bar Council of India or the Union of India are at liberty to frame rules in this regard.

Services provided by BPO Companies:

  • BPO companies providing range of customized and integrated services and functions to its customers may not violate the provisions of the Advocates Act, only if the activities in pith and substance do not amount to practice of law. The manner in which they are styled may not be conclusive.
  • If their services do not directly or indirectly amount to practice of law, the Advocates Act may not apply. This is a matter which may have to be dealt with on case to case basis having regard to a fact situation

The Court was hearing the appeal arising from the Judgment of Madras High Court in A.K. Balaji v. Government of India, 2012 SCC OnLine Mad 723 : AIR 2012 Mad 124 and Bombay High Court in Lawyers Collective v. Bar Council of India, 2009 SCC OnLine Bom 2028 : 2010 (2) Mah LJ 726 on the issue of whether foreign law firms/lawyers are permitted to practice in India. [Bar Council of India v. A.K. Balaji, 2018 SCC OnLine SC 214, decided on 13.03.2018]