BAR COUNCIL OF INDIA versus A.K. BALALJI AND ORS.

Citation: [2018] 3 S.C.R. 229 · Decided: 13-03-2018 · Supreme Court of India · Bench: ADARSH KUMAR GOEL · Disposal: Disposed off

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Judgment (excerpt)

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  BAR COUNCIL OF INDIA
 v
  A.K. BALALJI AND ORS.
      (Civil Appeal Nos. 7875-7879 of  2015)
   MARCH 13, 2018
[ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.]
Advocates Act, 1961:
ss. 24, 29, 47(2) r/w s.49(1)(e) and s.49A – Foreign law firms/
lawyers – Permissibility to practice in India – Held: Practice of law
includes litigation as well as non-litigation – Giving of opinion,
drafting of instruments, participation in conferences involving legal
discussion are parts of non-litigation practice – Regulatory
mechanism for conduct of advocates applies to non-litigation work
also – As per the Act, advocates enrolled with the Bar Council alone
are entitled to practice law  – Foreign law firms/companies or foreign
lawyers cannot practice profession of law in India either in the
litigation or in non-litigation side – 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’ – Whether a particular visit is casual
or frequent so as to amount to practice is a question of fact to be
determined from situation to situation – It is not correct that the Act
applies only if a person is practicing Indian law  – A foreign lawyer
is not entitled even to practice foreign law in India without subjecting
himself to the regulatory mechanism of the Bar Council of India
Rules – Advocates Act equally deals with companies or firm and
individuals – Bar Council of India Rules,1975.
ss. 32 and 33 – Foreign law firms/lawyers – Permissibility to
conduct arbitration proceedings – In respect of disputes arising
out of a contract relating to international commercial arbitration –
Held: There is no absolute right of foreign lawyer to conduct such
arbitration proceedings – However, they may not be debarred from
conducting such arbitration proceedings in view of ss. 32 and 33,
  [2018]  3 S.C.R. 229
       229
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SUPREME COURT REPORTS
[2018] 3 S.C.R.
if the Rules of Institutional Arbitration apply or the matter is covered
by the provisions of Arbitration Act – But they will be governed by
Code of Conduct applicable to legal profession in India – Central
Government or Bar Council of India is at liberty to frame rules in
this regard.
Applicability of the Act – To the customised and integrated
service provided by Business Process Outsourcing (BPO) Companies
– Held: If such services in pith and substance amount to practice of
law, the Act would be applicable – The manner in which they are
styled may not be conclusive.
Disposing of the appeals, the Court
HELD: 1. Ethics of the legal profession apply not only when
an advocate appears before the Court. The same also apply to
regulate practice outside the Court. Adhering to such ethics is
integral to the administration of justice. The professional
standards laid down from time to time are required to be followed.
Thus, practice of law includes litigation as well as non litigation.
[Para 39] [270-A-B]
2. 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. The view of the Bombay High Court and Madras
High Court to the effect that foreign law firms/companies or
foreign lawyers cannot practice profession of law in India either
in the litigation or in non-litigation side, is upheld.   [Paras 40 and
44] [270-C-E; 271-E-F]
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Pravin C. Shah versus K.A. Mohd. Ali  (2001) 8 SCC
650 : [2001] 3 Suppl. SCR 675 ; Ex. Capt. Harish Uppal
v. Union of India (2003) 2 SCC 45 : [2002] 5 Suppl.
SCR 186 – relied on.
3. 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’.
Whether a particular visi

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