Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Sanjay Kishan Kaul and M.M. Sundresh, JJ., issued notice to BCI to respond to suggestions made before the Court at the earliest with regard to introducing changes in Bar examination.

The instant appeal was filed by Bar Council of India (BCI) to assail the impugned order of the Gujarat High Court wherein the High Court had read down Rules 1 and 2 respectively of the Bar Council of Gujarat (Enrollment Rules) under Section 28(2)(d)  read with Section 24(1)(e) of the Advocates Act, 1961so as to read that a person may be either in full or part time service or employment or is engaged in any trade, business or profession, who otherwise is qualified to be admitted as an Advocate shall be admitted as an Advocate, however, the enrollment certificate of such a person shall be withheld with the Bar Council and shall lie in deposit with the Council until the concerned person makes a declaration that the circumstances mentioned in Rule 2 have ceased to exist and that he or she has started his/her practice.

Noticeably, Rule 1 and Rule 2 of the Bar Council of Gujarat (Enrollment) Rules provide prohibition from admission of a person who is otherwise qualified to be admitted as an advocate, but is either in full or part time service or employment or is engaged in any trade, business or profession, as an advocate. Noting the impracticality of the requirement to resign from work even before appearing for the exam, the High Court had remarked,

“The lady is in a helpless situation. Today, if she gives up her job being a single mother, and god forbid if she is unable to clear the All India Bar examination, then she would be left without any means of livelihood.”

As the case reached the Supreme Court, following interesting suggestions were made by the parties:

  1. Instead of reading down the Rules, suggestions were made to avoid link between enrollment and ability to take exams.
  2. It is a difficult decision of economic necessity for those in jobs to resign from job to write bar examination.
  3. It was debated by the BCI that persons in job wanting to take the Bar exam cannot be given provisional enrolment, however, a roll number can be issued to take the examination and that exam should be treated in furtherance the aspect of enrollment as and when it arises.
  4. A suggestion was made that succeeding in bar exam cannot give liberty to indefinitely postpone decision to seek enrollment or not. Thus, the result of the Bar exam, if successful, would hold good for three years within which the candidate can take the choice and if he continues his job for a longer period of time, he may be again required to take the Bar exam at the appropriate stage, as such long hiatus period may otherwise snap the link.
  5. Amicus Curiae K. V. Vishwanathan has suggested that there can be a viva exam for such candidates.
  6. Emphasis was also made on a more monitored process by the BCI to ensure that a law college which obtain recognition once, does not rest on that and maintain the parameters as set forth by the Bar Council.
  7. Instead of focusing on a rote ability, the Bar exam should focus on analytical thinking process to make the process of enrolment more meaningful.
  8. To restrain the candidates from taking advantage of random answers made without any consequence of a wrong answers, suggestion was made to introduce 1/4th negative mark for every wrong answer. However, the same need not be uniform throughout the paper but in certain nature of questions posed, and should be introduced in that particular section. Amicus Curiae pointed out that in UK the exams are based on the ‘Miller Pyramid Scheme’ of evaluation in all aspects of reading, writing, expression and communication of a prospective Bar entrance is evaluated. In USA some questions are marked with no provision of negative marking and there may be questions, in the very nature of things there, there may be more than one answer possible.
  9. Lastly, emphasis was also placed on evolving a fair system for juniors to find placement in chambers.

Considering the aforementioned suggestions, the Bench directed BCI to on the aforesaid process with expedition and issue instructions to S.N. Bhatt, senior counsel for BCI before next date of hearing. The matter is listed on 12-04-2022 for further hearing.

[Bar Council of India v. Twinkle Rahul Mangaonkar, C.A. No(s). 816-817 of 2022, decided on 15-03-2022]


Appearance by:

Amicus Curiae: K.V. Vishwanathan, Sr. Advocate

Others Present: R. Venkatraman, Amartya Sharan, Rahul Sangwan, M.G. Aravind, Chanakya Dwivedi, K. Sivagnanam, Advocates

For Appellant(s): S.N. Bhatt, Sr. Advocate, Durga Dutt, AOR, N.P.S. Panwar, D.P. Chaturvedi, Tarun Kumar Thakur, Parvati Bhat, Advocates

For Respondent(s): Anushree Prashit Kapadia, AOR, Megha Jani, Priyanka Rathi, Advocates


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: The Division Bench of M.R. Shah and B.V. Nagarathna*, JJ., held that the action of the selectively applying the proviso to Rule 25(a) in relation  to one person, while not applying the said proviso in relation to similarly situated persons, is arbitrary and therefore illegal. The Bench stated,

“We accept the settled position of law that the rule applicable in matters of determination of pension is that which exists at the time of retirement, we are unable to find any legal basis in the action of the respondent University of selectively allowing the benefit of Rule 25 (a).”

Factual Matrix

The appellant joined as a Lecturer in the School of Legal Studies in Cochin University of Science and Technology on 07-09-1984. Prior to such appointment, the appellant was a lawyer practising in the District Court and Subordinate Courts and High Court of Kerala. The appellant made a representation before the Registrar of the University, requesting to reckon his practice of eight years at the Bar for the purpose of determining his pensionary benefits payable to him on his superannuation as provided under Rule 25 (a), Part III of Kerala Service Rules.

The respondent rejected the request of the appellant on the ground that the proviso to Rule 25 (a), Part III, KSR provides that the benefit under Rule 25 (a) would be available only to such employees who are recruited when practising at the Bar, to those posts requiring a qualification in law and experience at the Bar. Therefore, the respondent opined that since experience at the Bar was not essential for appointment to teaching posts at the University, the question of reckoning previous experience at the Bar would not arise in relation to the appellant.

The appellant stated in his appeal petition before the Chancellor that the proviso to Rule 25 (a), Part III, KSR was inserted in said Rule with effect from 12th February 1985. The appellant contended that the proviso could not be made applicable to him as the same was not in force as on the date on which he joined service at the respondent University. On the other hand, the respondent maintained that the Government or any other statutory body has the right to modify the service conditions, even retrospectively. The respondent further stated that since the proviso was introduced in Rule 25 (a) while the appellant was still in service, the proviso would apply to him.

Findings of the Court

Noticeably, in the case of one Dr. P. Leela Krishnan, a Professor of Law who was similarly situated as the appellant, the respondent University had duly considered the period of practice at the Bar as a part of qualifying service for the purpose of determining pension payable on superannuation, as perusal of extracts from the pension book of Dr. P. Leela Krishnan, revealed that his experience of practice at the Bar of 7 years, 2 months and 26 days was added to the period of his service at the  University, being 26 years, 9 months and 2 days. Accordingly, the respondent University had in determining his superannuation pension, considered 33 years, 7 months and 4 days as the qualifying period of service.

“Considering that no argument had been advanced on behalf of the respondents as to the manner in which the case of the appellant is different from that of Dr. P. Leela Krishnan and on what basis the benefit of Rule 25 (a) was granted to Dr. P. Leela Krishnan but was withheld in relation to the appellant.”

Pointing out the similarities between the two, the Bench stated, both these individuals were appointed as teaching faculty at the respondent University after practicing as advocates in various Courts of Kerala. They were both appointed before the proviso to Rule 25 (a) came into effect, i.e. before 12-02-1985 and retired after the said proviso came into force.

“In the circumstances, we find no valid ground to sustain the application of the proviso in relation to the appellant, thereby denying the benefit of Rule 21 25(a), when the same was not applied in the case of Dr. P. Leela Krishnan, thereby allowing the benefit of Rule 25(a).”

The law, as recognized in Deoki Nandan Prasad v. State of Bihar, (1971) 2 SCC 330, and Government of Andhra Pradesh v. Syed Yousuddin Ahmed, (1997) 7 SCC 24, states that the pension payable to an employee on retirement shall be determined on the rules existing at the time of retirement. However, the Bench stated, law does not allow the employer to apply the rules differently in relation to persons who are similarly situated. Therefore, the Bench opined that if the respondent University sought to deny the benefit of Rule 25 (a), in light of the proviso which was subsequently inserted thereby limiting the benefit of the Rule, it ought to have done so uniformly; as the proviso could have been made applicable in relation to all employees who retired from service of the respondent University following the introduction of the proviso, i.e. after 12-02-1985.

Conclusion

In the light of above, the Bench held that the denial of the benefit under Rule 25 (a), KSR, to the appellant was arbitrary and not in accordance with law. Consequently, the appellant was held entitled to receive pension having regard to his total qualifying service, inclusive of the period of his service at the respondent University and the period of his practice as an Advocate in various Courts of Kerala.

Accordingly, the impugned judgment of the High Court, whereby it was approved the action of respondent university was set aside. The respondent University was directed to calculate the amount of pension short paid to the appellant from the date of his superannuation and disburse such amount together with interest at the rate 5% p.a. till date of payment in favour of the appellant.

[G. Sadasivan Nair v. Cochin University of Science and Technology, 2021 SCC OnLine SC 1155, decided on 01-12-2021]


Kamini Sharma, Editorial Assistance has put this report together 


Appearance by:

For the Appellant: K.P. Kylasanatha Pillay, Senior Counsel along with Sajith P. Warrier, Counsel

For the Respondents: Malini Poduval, Counsel

For the State: G. Prakash Counsel


*Judgment by: Justice B.V. Nagarathna

 

Tags: Service Law, Government Servant, University, Teacher, Bar Council, Experience, Retirement, Superannuation, Pension

Case BriefsHigh Courts

Madras High Court: M. Dhandapani, J., expressed that:

“…advocates are not above law and, in fact, it is the advocates who have to give more respect to the law, as it is their bread and butter.”

“Court should not be a mute spectator to the legal gimmicks…”

Factual Matrix

Respondent Police had registered a case wherein 2nd petitioner was stopped by police officials on duty while she was proceeding in her car. Her car was stopped as the lockdown was imposed and on query she responded that she had come out for the purpose of purchasing medicines, however, respondent 2 informed that she had stated that she came out for purchasing fish.

It was also stated that she had no valid pass for going out during the lockdown period.

In light of the above incident, a challan of Rs 500 was issued

Crux of the matter

The whole melee started on the issuance of challan, after which 2nd petitioner started quarrelling with police officials.

Overall scene that has led to the present matter was that, petitioner 1 claimed and proclaimed that she was an advocate, used filthy, abusive and unparliamentary language, used derogatory words and castigated the police officials on duty and in fact threatened them that they will be stripped off their uniforms, if they tried to intervene and cause any hindrance to the movement of the petitioners.

Police officials were smeared all over with mud by 1st petitioner. Hence, for total violation of lockdown guidelines and non-adherence to the provisions of the Disaster Management Act and violation of the provisions of the Penal Code, petitioners were slapped with by filing of the above complaint and further leading to registration of case.

In Court’s earlier order, Bar Council of Tamil Nadu was directed to file a status report as to the mechanism that was in place for taking action against those unruly advocates, who cast a slur by their act, demeaning the whole legal profession without bothering about the impact of their acts on the disciplined and law-abiding members of the legal fraternity.

As per the status report, a mechanism was envisaged under Section 35 of the Advocates Act for proceeding against a member of the Bar for unprofessional conduct or other misconduct. However, the said provision spoke only about the complaint received on which action is initiated by the Bar Council.

Though, from the status report it was not clear as to the suo motu powers of the Bar Council in dealing with such instances, where the unprofessional act comes to the knowledge of the Bar Council, though not on the basis of a complaint, in which case, the matters such as the present one goes unnoticed, though it was in the public domain and reached the ears and eyes of the public through the visual media.

Sine the status report was silent, it led to the inference that generally no action was taken against such persons, if there was no complaint before the Bar Council.

It is also not clear whether the Bar Council has deliberated on this aspect of initiation of suo motu action against such unruly members of the Bar, who damage and stature and sanctity of the institution and also the members associated with the said institution.

Police personnel | Frontline Workers

It is to be pointed out that the police personnel has been one of the frontline workers in trying to curb the spread of the deadly virus by maintaining the lockdown guidelines imposed by the Government from time to time since March, 2020 and it is further to be pointed out that the pandemic is not yet over and caution has been given about the on-coming of the 3rd and 4th wave, which are predicted to have a still more detrimental impact on the human race.

Police personnels have not only been working overtime but also working with least concern for their family and themselves and have been dedicating their lives to the cause of humanity. In such a scenario, the least expected of the general public and also the intellectual group of legal professionals that they should be given the minimum basic respect and courtesy while handing them.

Advocates Stature

Advocate because of his avocation and his social-minded acts, rise up the pedestal and in fact that was the reason law gave them the stature to question even the police. But that stature should be used in a legal and lawful manner without maligning the reputation and position of any individual person or any official of the Government.

Further, it was elaborated that,

Usage of the position of advocate for other than just causes is nothing but an act of corrupt nature, which requires to be cut down by the sword held in the hands of the statue of Justice.

The doyens of the Bar, more especially the Madras Bar, have held aloft the rule of law for centuries together and Madras Bar is always looked upon with awe and admiration.

 A very significant observation made by the Court was that, nowadays, a few members, just to enrich themselves and for their selfish cause, throw to the winds the larger interest of the legal fraternity and cause irreparable damage to the other members of the legal profession by their acts, as has been done in the present case. 

Bench noted that 1st petitioner indulged in the above-stated act in Infront of her daughter 2nd petitioner who was said to be a 4th-year student. In such a backdrop, it is more expected of the 1st petitioner to teach the 2nd petitioner the ethics for following the rule of law, as otherwise, her act as in the present case, would engrave upon the mind of the 2nd petitioner, which would not be a welcome sign to the legal profession.

High Court expressed that if it allowed such mindset to go unnoticed, it would be a great injustice that this Court would be doing to the legal profession and also to the genuine, dignified and respectful legal professionals, who respect this profession and the robes they wear and would also be sending a wrong signal to send 2nd petitioner who is slowly climbing up the ladder to enter the legal profession.

In view of the above discussion, Court did not grant anticipatory bail to the 1st petitioner.

With regard to 2nd petitioner, Court stated that mere quarrelling with the police officials cannot be said to be a wrongful act, which would attract the penal provisions pressed into service by the respondents against 2nd petitioner and any view taken to the contra would be negating the rights guaranteed to the citizens under the Constitution.

Law Enforcement Agency and their role

The law enforcing agency is manned by persons, who have experience in dealing with criminals and not each and every individual, who commits a mistake should be branded as a criminal by bringing the individual within the four corners of the penal code.

Unnecessary infliction of charges of this nature on every individual would only make the individual look into the loopholes of the system and try to wriggle out of the same after committing mistakes, which should be avoided at all costs.

Hence, Bench stated that respondents shall ponder dropping of all the charges made against 2nd petitioner as there was no substance in the said charges.

Bar Councils’ Mechanism to deal with erring Advocates

Law has given the legal professional privilege and status, but the said privilege is to be used sparingly and only for upholding the majesty of law and following the rule of law. It is not given for the purpose of maligning the rule of law and demeaning the other members of the Bar to the benefit of the individual.

Any infraction by this Court in not safeguarding the interest of the legal profession would be a doom for the entire judiciary and the legal fraternity as a whole.

 Bar Council in its report submitted that it takes action only when it receives any complaint against any erring advocate.  However, what this Court was more bothered about was the fact that not all unprofessional conduct or other misconducts lead to a complaint being written by the Bar Council.

Any unprofessional conduct of a member of the legal profession, coming to the knowledge of the Bar Council through the visual media for which no complaint emanates from any quarter, can the Bar Council allow that instance to go unnoticed for the mere reason that the Advocates Act does not envisage suo motu action?

Court feels that it is high time the Bar Council enforces Section 35 of the Advocates Act, which gives it power and authority to initiate action suo motu on the incidents, which comes to its knowledge through the digital/print media, for which there is no complaint given by any individual.

In view of the above discussions, 2nd petitioner deserves anticipatory bail while dismissing the petitioner insofar as 1st petitioner.

Another issue that the Court dealt was a WhatsApp audio which was circulated by one R. Krishnamurthi, a member of the Bar who circulated the audio on social networking platforms attributing mala fides to the Bench.

advocate has further stated that I should recuse from hearing the case any further and has also attributed dishonesty and also stated that I am taking a lopsided view in favour of the law enforcing agency. Though I have called only for certain particulars, the advocate has gone on to make allegations that I have taken a biased view and I am leaning towards the law enforcing agency and has even casted aspersions against me openly in the social networking domain

Adding to the above, Bench also noted that the advocate imputed allegations against the Judiciary in falling to take any action against the law enforcing agency for very many irregularities committed by them during the pandemic situation, which are not in consonance with law.

The act of the advocate is very much contumacious and attracts initiation of criminal contempt proceedings. The whole audio paints a very gloomy picture and without any material aspersions are attributed against the Bench.

It was noted that the said Krishnamoorthy was a total stranger to the proceedings, yet he had made derogatory statements in the social media against the judicial functions of the Bench, including seeking Judge’s recusal, which was nothing but interference with the administration of justice.

Hence, High Court held that the act of aforesaid advocate attracted Section 2(c) of the Contempt of Courts Act.

This Court would not fall prey to such acts perpetrated by gossip mongers and unscrupulous elements, with a view to scuttle the judicial process and make the judiciary dance to their tunes.

Bench directed Registry to issue notice regarding initiation of Suo Motu Criminal Contempt proceedings against the said R. Krishnamoorthy as provided for under Section 14 of the Contempt of Courts Act and, thereafter, place the matter before the Hon’ble Chief Justice for being listed before the appropriate Bench for hearing. [Tanuja Rajan v. State, 2021 SCC OnLine Mad 2242, decided on 18-06-2021]


Advocates before the Court:

For Petitioners: Ms. A.Louisal Ramesh

For Respondent : Mr. A.Gopinath, GA (Crl. Side) for R-1 Mr. Haja Mohideen Gisthi for R-2


Madras HC | Is there any mechanism to take action against members of legal fraternity for their misbehaviour with officials on duty? Bar council of Tamil Nadu to respond

 

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]

Kerala High Court
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]