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JURISDICTION
OF 2015
(Arising fro
impugned final judgment and common order dated 16
December J09 passed by the Hon'ble High Court of Judicature at
Bombay in V rit Petition (C) No. 1526 of 1995).
IN THE MATTER OF:
Global Indian Lawyers
... PETITIONER
VERSUS
... RESPONDENTS
PAPER BOOK
I.A. No.
of 2015 :
WITH
Application for permission to file Special
Leave Petition
I.A. No.
of 2015 :
AND WITH
Application exemption from filing certifieo
copy of the impugned judgment.
of 2015 :
AND WITH
Application for condonation of delay in
filing Special Leave Petition.
I.A. No.
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INDEX
Particulars
s. No.
1.
2.
Listing Proforma
3.
4.
5.
6.
Appendix
Advocates Act ,1961
7.
Annexure P-1
True Copy of the order dated ~l02.2012passed by the Hon'ble High Court of Judicature
at Madras rendered in Writ PetitionNo.5614/2010
8.
Annexure P-2
True Copy of the order 04.07.2012
passed by~Hon'ble
Court rendered
in SLP (C) 17150-54 of 2012
9.
10.
11.
12.
Letter
Pages
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2.
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petition for condonation
....,...
days in refilling has been
filed.
BRANCH OFFICER
Dated:
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SYNOPSIS
The present Special Leave Petition is being preferred against the
impugned final judgement and order dated 16 December 2009, passed
by the Hon'ble High Court of Bombay in Writ Petition No.1526 of 1995,
whereunder, the Hon'ble High Court has erroneously held that to
practice the profession of law in India, a foreign law firm has to fulfill the
qualification of being enrolled as advocates under the Advocates Act,
1961 (the "Advocates Act").
The Petitioner is a Society registered in India of legal professionals
and appropriately qualified lawyers who are citizens of India and are
qualified to practice law in India and dedicated to promote the
internationalization of the legal fraternity.
which the Society has been established includes promoting and creating
opportunities for Indian legal professionals to have a global outlook and
acquire global and international exposure with the inflow of international
law firms into the Indian legal system. The Petitioner aims to enable
Indian qualified lawyers to work with global lawyers being based out of
India and to encourage the working of foreign qualified lawyers and
Indian qualified lawyers from India, to give Indian law students and
Indian qualified lawyers an opportunity of working at international law
firms in India and to promote the setting up of a universal global
standard of regulating legal profession and the code of conduct binding
lawyers.
The Petitioner respectfully submits that one of the most effective
methods to provide international exposure to the lawyers in India is the
entry of foreign law firms into India. The Petitioner is thereby aggrieved
by the findings of the impugned judgment of the Hon'ble High Court of
Bombay which erroneously places a qualification on foreign firms to
register as advocates under the Advocates Act, when there is the no
such restriction under the Advocates Act or under the Bar Council of
India Rules (the "BCI Rules") to prohibit a foreign law firm from
establishing an office in India.
Leave is sought to challenge the judgment and final order dated
16 December, 2009 passed by the Hon'ble High Court of Judicature at
c
Bombay on the grounds that the impugned judgment is premises on an
incorrect reading of the concept of a law firm. The Petitioner respectfully
submits that under the provisions of Advocates Act, 1961 it is only the
individual lawyers who are required to be registered and not the law
firms in India. Such registered lawyers collectively form a law firm,
which is only a structure, sometimes in the form of partnership, an LLP,
or a sole proprietorship.
ii)
The Courts have not delved upon the requirements under the
Advocates Act and the BCI Rules for registration of lawyers based
upon the demarcation of the practice of the profession of law into
the practice of Indian law and the practice of foreign law.
iii)
The Courts have also not delved into the possibility of whether a
foreign law firm could have Indian qualified lawyers join the firm
and practice Indian law, whereas the foreign lawyers could
practice only foreign law.
iv)
ff
The Advocates Act and the BCI Rules do not regulate or prohibit
the profession of foreign law, which is governed by laws of each
foreign state and only apply to the practice of Indian law.
vi)
regulated by the laws of each foreign state whose law they seek
to practice.
In light of the above, it is respectfully submitted that the impugned
judgment of the Hon'ble High Court of Bombay is untenable in law and it
is expedient in the interest of justice and the profession of law in India
that this Hon'ble Court take into consideration the rights of dual qualified
lawyers (qualified in Indian and foreign law) as well as only foreign
qualified lawyers (Indians or non-Indians) to practice law in India under
the umbrella of a foreign law firm. Hence, the present Special Leave
Petition.
LIST OF EVENTS
The Petitioner is a Society registered in India
under the Societies Registration Act, of legal
professionals who are citizens of India and
are qualified to practice law in India and
dedicated to promote the internationalization
of the legal fraternity.
The aim and objects for which the Society
has been established includes promoting and
creating
opportunities
for
Indian
legal
global
and
promoting
international
and . facilitating
exposure,
Indian
law
and
Indian
qualified
the
growing
influence
of
and
international
support
law
firms
the
entry
of
into
India,
to
profession
by
assisting
and
,
}-f
,
In
Petitioner's
1995
29
of
the
Foreign
Exchange
assuming
such
permission
are
Act,
1961?
was, whether
In
particular,
practicing
the
in non-
17-18/11/2007
of
India
held
its
Consultative
re-affirmed
and
dated
12/02/2006
further
it
was
(who
are not
Legal
16/12/2009
H
of
the
Writ
Petition
being
W.P.
No.
RBI could
not
have granted
could carryon
their
activities
in
India
only
enrolled
as
advocates
liaison
on
under
being
the
I
the provisions contained in the 1961
Act.
The learned Bench categorically ruled
that the Chamber Practice, namely,
practice in non-litigious matters is also
within the purview of the 1961 Act.
wit
petition,
the
the
irrespective of
profession
the
of
practice
law
being
2010
of
Mandamus or
any
other
J
lawyers who are illegally practicing the
profession of law in India and prohibit
them from having any legal practice
either in the litigious side or in the field
of
non-litigious
and
commercial
August 2011
the
afore-mentioned
illegally
and
carrying
on
their
writ
petition
and
upon
said
Respondents-Foreign Law
developed
where
such
advice
is
L
iii)
country
and
that
the
may
be
licensed to
It
was
further
adverted
that
these
Indian
lawyers
On
the
Applicability
of
the
That foreign
amount to
in a seminar or
...
conference does not constitute
practicing
law,
and
in
fact,
seminars
and
conferences
of
in
the
a
regulating
country
will
21/02/2012
21/02/2012
was
pleased to
law
and
firms
cannot
foreign
practice
the
N
India for a temporary period on a 'fly
in and fly out' 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.
c) Moreover,.having regard to the aim
and objects of the International
Commercial Arbitration introduced in
the Arbitration and Conciliation Act,
1996, foreign lawyers cannot be
debarred to come to India and
conduct arbitration proceedings in
respect of disputes arising out of a
contract
relating
to
international
commercial arbitration.
d) The B.P.OCompanies providing wide
range of customized and integrated
services
and
functions
customers
like
Secretarial
support,
services, proof
to
its
word-processing.
transcription
reading
services,
Note:
The judgment
and order
o
Madras in Writ Petition No. 5614/2010 titled
'A./(, Balaji vs. Bar Council of India & Ors' is
herein
produced
by
way
of
additional
04/07/2012
was pleased to
issue
notice.
True Copy of the order dated 04/07/2012
rendered in SLP (C) No. 17150-54 of 2012
P~d
'0'1 ~
Hd1~lL._ UlJ.Y~
is
2. (Pages.l~oto.J_lJ./.)
2014
,,--
p
Act, with the sole aim and objective of
promoting the internationalization of the legal
fraternity. Having noticed the diametrically
opposite views taken by the two high Courts
in respect of the issue regarding entry of
Foreign Law Firms in India, the Society
thought it expedient in the interest of the legal
profession and justice delivery system to
challenge the judgment and final order dated
16/12/2009 passed by the High Court of
Judicature at Bombay in W.P. No. 1526/2009
by way of leave to appeal under Article 136 of
the Constitution of India before the Hon'ble
Supreme Court of India. As such, vide its
Resolution dated :2 0 1'1, the Petitioner Society
resolved to prefer a special leave petition to
urge certain additional issues with respect to .
the issue of entry of foreign law firms in India,
which have not been adhered to or considered
by either of the two High Courts in their
judgments aforementioned.
J~ /03/2015
Judgment
- W.P.1S26/199S
1.
2.
3.
4.
5.
......Petitioners
Judgment - W.P.1526/1995
7.
Union of India,
8.
9.
10.
11.
12.
13.
Judgment - W.P.1526/1995
Anand Niketan, New Delhi - 110 021.
14.
15.
...... Respondents.
r
with Mr.Anand
Grover with
with Mr.Simil
Judgment - W.P.1526/1995
CORAM: SWATANTER KUMAR, C.J. & J.P. DEVADHAR, J.
Judgment
reserved On
Judgment
delivered On
1.
firstly, whether the permissions granted by the Reserve Bank of India to the
respondent Nos.12 to 14 foreign law firms to establish their place of
business in India (liaison office) under Section 29 of the Foreign Exchange
Regulation Act, 1973 are legal and valid ? Secondly, assuming such
permissions are valid, whether these foreign law firms could carryon their
liaison activities in India only on being enrolled as advocates under the
Advocates Act, 1961 ? To be specific, the question is, whether practising in
non litigious matters amounts to 'practising the profession of law' under
section 29 of the Advocates Act, 1961 ?
2.
Act' for short) to regulate the persons practising the profession of law. To
ensure the dignity and purity of the noble profession of law, the 1961 Act
provides for establishment of the State Bar Councils and the Bar Council of
India. The Bar Councils have been created at the State level as also at the
Central level not only to protect the rights, interests and privileges of its
members but also to protect the interest of the general public by ensuring
them that the professionals rendering the legal services maintain high and
noble traditions of the profession.
Judgment - W.P.1526/1995
3.
There is no
he has to be
enrolled as an advocate under the 1961 Act. However, the dispute is, where
a person wants to practise in non litigious matters, whether, he should be
enrolled as an advocate under the 1961 Act?
4.
under the Societies Registration Act, 1860 as well as under the Bombay
Public Trust Act, 1960.
Advocates enrolled on the rolls of various Bar Council in India and also law
students. The petitioner has filed the present writ petition in public interest
as according to them, the permission granted by the Reserve Bank of India
('RBI' for short) to the foreign law firms, namely respondents No.12 to 14 to
open liaison offices in India is totally illegal and in gross violation of the
provisions of the 1961 Act. Since the petitioner is concerned with the
practice of legal profession and particularly concerned in ensuring that the
ethical practise prevail in the legal profession in India, the petitioner seeks
declaration that the permission granted by RBI to the respondents No.12 to
14 is bad in law and that the respondents No.12 to 14 cannot be permitted to
carryon their activities in India unless they are enrolled as advocates under
the 1961 Act.
Judgment - W.P.1526/1995
5.
practising the profession of law in U.K. / U.S.A. and having branch offices in
different parts of the world had applied to the RBI during the period 1993 to
1995 seeking permission to open their liaison offices in India.
In the
"A.
B.
C.
D.
E.
F.
G.
H.
6.
Judgment - W.P.1526/1995
14, the RBI granted them permission to open their respective liaison offices
in India, subject to the conditions set out therein. The conditions imposed by
the RBI were :-
"(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(a)
(b)
(c)
(d)
Judgment - W.P.1526/1995
8.
9.
code for regulating the practice of law in India. He submitted that as per
Section 24 read with Section 29 of the 1961 Act, any person intending to
practise the profession of law must be enrolled as an advocate on any State
Bar Council established under the 1961 Act. Since the expression 'to
Judgment
- W.P.1S26/199S
10.
11.
12.
"
Whether a person gives advice as to New
York law, Federal law, the law of a sister State, or the law of a
foreign country, he is giving legal advice. Likewise, when
legal documents are prepared for a layman by a person in the
Judgment - W.P.1S26/199S
reported in 2003 S.C. Lexis 293, inter alia held thus :"Based on the foregoing analysis, we hold that when
nonlawyer title abstractors examine public records and then
render an opinion as to the content of those records. they are
engaged in the unauthorized practice of law. But if a licensed
attorney reviews the title abstractor's report and vouches for
its legal sufficiency by Signing the report, title abstractors
would not be engaged in the unauthorized practice of law."
(emphasis supplied)
14.
11
Judgment - W.P.1526/1995
o
15.
(emphasis supplied)
The Apex Court in the case of Ex. Capt Harish Uppal VIs.
Union of India reported in (2003) 2 Supreme Court Cases 45, has held
thus :"34.
The right of the advocate to practise
envelopes a lot of acts to be performed by him in discharge of
his professional duties. Apart from appearing in the courts he
can be consulted by his clients, he can give his legal opinion
whenever sought for, he can draft instruments, pleadings.
affidavits or any other documents, he can participate in any_
conference involving legal discussions, he can work in any
office or firm as a legal officer, he can appear for clients
before an arbitrator or arbitrators etc. Such a rule would have
nothing to do with a" the acts done by an advocate during his
practice. He may even file vakalat on behalf of a client even
though his appearance inside the court is not permitted.
Conduct in court is a matter concerning the court and hence
the Bar Council cannot claim that what should happen inside
the court could also be regulated by them in exercise of their
disciplinary powers. The right to practise. no doubt. is the
genus of which the right to appear and conduct cases in the
court may be a specie. But the right to appear and conduct
cases in the court is a matter on which the court must and
does have major supervisory and controlling power. Hence,
courts cannot be and are not divested of control or
supervision of conduct in court merely because it may involve
the right of an advocate
"
" "
(emphasis supplied)
Judgment - W.P.1S26/199S
16.
VIs. Union of
India reported in (1998) 4 Supreme Court Cases 409, the Apex Court has
held thus :-
"58. After the coming into force of the Advocates Act, 1961,
exclusive power for punishing an advocate for "professional
misconduct" has been conferred on the State Bar Council
concerned and the Bar Council of India. That act contains a
detailed and complete mechanism for suspending or revoking
the licence of an advocate for his "professional misconduct".
Since the suspension or revocation of licence of an advocate
has not only civil consequences but also penal consequences,
the punishment being in the nature of penalty, the provisions
have to be strictly construed. Punishment by way of
suspending the licence of an advocate can only be imposed
by the competent statutory body after the charge is
established against the advocate in a manner prescribed by
the Act and the Rules framed thereunder.
71.
Thus, after the coming force of the Advocates Act, 1961
with effect from 19-5-1961, matters connected with the
enrolment of advocates as also their punishment for
professional misconduct is governed by the provisions of that
Act only. Since, the jurisdiction to grant licence to a law
graduate to practise as an advocate vests exclusively in the
Bar Council of the State concerned, the jurisdiction to
suspend his licence for a specified term or to revoke it also
vests in the same body."
(emphasis supplied)
17.
(2001) 8 Supreme Court Cases 650, the Apex Court has held thus :-
"16. .
The right of the advocate to practise
envelops a lot of acts to be performed by him in discharge of
his professional duties. Apart from appearing in the courts he
can be consulted by his clients, he can give his legal opinion
whenever sought for, he can draft instruments, pleadings.._.
affidavits or any other documents. he can participate in any
conference involving legal discussions etc
"
(emphasis supplied)
Judgment - W.P.1S26/1995
18.
19.
Maharashtra & Goa have adopted the arguments advanced by the counsel
Judgment - W.P.1526/1995
20.
Government is still in the process of consulting all the stake holders and any
decision on the issue will be taken after considering the views of all the
stake holders. However, Counsel for the Union of India submitted that for
drafting legal documents or giving opinion on aspects of foreign or
international law, one need not be on the roll of the Bar Council. He further
submitted that if the contention of the petitioner is accepted then, no
bureaucrat will be able to draft or given opinion. He submitted that reading
various provisions of the 1961 Act particularly Section 24, 29 and 45 of the
1961 Act, it becomes clear that the 1961 Act prescribes the mode and the
manner of enrolling advocates who want to practice the profession of law
before Courts, Tribunals and other authorities and provide for punitive action
against advocates who have violated the provisions contained in the 1961
Act and the rules framed by the Bar Council. Counsel for the Union of India
further submitted that the fact that the 1961 Act contains penal provisions in
respect of persons illegally practicing in Courts and other authorities, and
does not provide any penal provisions tor the breaches committed by
persons practicing in non-litigious matters clearly shows that persons
practicing in non-litigious matters are not governed by the provisions of the
1961 Act.
21.
Counsel for the Union of India further submitted that as per the
J_(
Judgment - W.P.152611995
22.
RBI submitted that the permission given by RBI to the respondents No.12 to
14 was within the scope and ambit of powers vested in RBI under the 1973
Act. He submitted that Section 29(1)(a) of the 1973 Act empowers RBI to
grant permission to a resident outside India to establish a branch office or a
place of business in India. He submitted that RBI is not concerned with the
provisions contained in the 1961 Act and in any event, the permission
granted by RBI is only to establish a liaison / representative office to act as a
communication channel between the overseas principal and parties in India.
23.
Judgment
- W.P.152611995
24.
one of the main contesting foreign law firm, namely the respondent No.12,
submitted that the argument of the petitioner that the permission granted by
RBI to the foreign law firms to establish liaison offices in India is in violation
of the 1961 Act, is completely misconceived because, the 1961 Act is
enacted by the Parliament in exercise of the powers conferred under entry
"
Judgment - W.P.1S26/199S
25.
the Apex Court in the case of D.N. Mohindroo VIs. Bar Council reported in
AIR 1968 S.C. 888, (see page 893) wherein it is inter alia held thus :-
"10.
..
Though the Act relates to the legal
practitioners, in its pith and substance it is an enactment
which concerns itself with the qualifications, enrolment, right
to practise and discipline of the advocates. As provided by
the Act once a person is enrolled by anyone of the State Bar
Councils, he becomes entitled to practise in all courts
including the Supreme Court. As aforesaid, the Act creates
one common Bar, all its members being of one class,
namely, advocates. Since all those who have been enrolled
have a right to practise in the Supreme Court and the High
Courts, the Act is a piece of legislation which deals with
persons entitled to practise before the Supreme Court and
the High Courts. Therefore, the Act must be held to fall_
within entries 77 and 78 of List I. As the power of legislation
relating to those entitled to practise in the Supreme Court
and the High Courts is carved out from the general power to
Judgment - W.P.1S26/199S
legislate in relation to legal and other professions in entry 26
of List "I, it is an error to say, as the High Court did, that the
Act is a composite legislation partly falling under entries 77
and 78 of List I and partly under entry 26 of List "I."
(emphasis supplied)
learned counsel for respondent No.12 submitted that the question raised in
the petition being squarely covered against the petitioner, the writ petition is
liable to be dismissed.
26.
amend and consolidate the law relating to legal practitioners and to provide
for the Constitution of Bar Councils and an All-India Bar. He submitted that
the foreign law firm like the respondent No.12 had neither sought permission
nor permission has been granted by RBI to the respondent No.12 to practise
the profession of law as legal practitioners or advocates. Permission has
been granted by RBI to open a liaison office in India which is within the
domain of RBI under the 1973 Act.
27.
sec
261 and
practising the
profession of law before Courts / Tribunals / any other authority and the said
Act has no application to the persons practising in non-litigious matters.
Judgment
- W.P.1S26/199S
Mr.Seervai submitted that if the contention of the petitioner that the 1961 Act
applies both to persons practicing in non-litigious matters as well as litigious
matters practised by persons before the Supreme Courts and High Courts is
accepted, then it would render the Advocates Act, 1961 ultra vires the
Constitution, because the 1961 Act is enacted in exercise of powers vested
in the Central Government under entry 77 and 78 in List of the Seventh
Schedule to the Constitution which specifically provides for enacting law
relating to persons practising in the Supreme Court and the High Courts.
Therefore, the construction put forth by the petitioner which renders the
1961 Act ultra vires the construction cannot be accepted.
28.
merely declaratory in nature and it merely provides that from the appointed
day there shall be only one class of persons entitled to practise the
profession of law. Section 29 does not confer the right to practise the
profession of law. It is Section 33 which provides that advocates enrolled
under the 1961 Act alone are entitled to practise in any Court or before any
authority. Moreover, Section 49(1)(ag) and Section 49(1)(ah) of the 1961
Act, empower the Bar Council of India to make rules relating to the class or
category of persons entitled to be enrolled as advocates and the conditions
subject to which an advocate shall have the right to practise. Therefore, the
1961 Act which applies to persons practising in litigious matters before the
Supreme Court / High Courts / Tribunals cannot be applied to persons
practising in non-litigious matters.
29.
"
Judgment - W.P.1526/1995
In the case of
Sushma Suri VIs. Govt. of National Capital Territory of Delhi & Another
reported in (1999) 1 Supreme Court Cases 330, the Apex Court inter alia
held thus :-
"6.
If a person on being enrolled as an advocate ceases
to practise law and takes up an employment. such a person
can by no stretch of imagination be termed'as an advocate.
However, if a person who is on the rolls of any Bar Council is
engaged either by employment or otherwise of the Union or
the State or any corporate body or person practises before a
court as an advocate for and on behalf of such Government,
corporation or authority or person, the question is whether
such a person also answers the description of an advocate
under the Act. That is the precise question arising for our
consideration in this case.
9.
.
The expression "members of the Bar" in the
relevant Rule would only mean that particular class of
persons who are actually practising in courts of law as
aleaders or advocates. In a very general sense an advocate
is a person who acts or pleads for another in a court and if a
Public Prosecutor or a Government Counsel is on the rolls of
the Bar Council and is entitled to practise under the Act, he
answers the description of an advocate.
10.
............. The test. therefore. is not whether such
person is engaged on terms of salary or by payment of
remuneration. but whether he is engaged to act or plead on
its behalf in a court of law as an advocate. In that event the
terms of engagement will not matter at all. What is of
essence is as to what such law officer engaged by the
Government does - whether he acts or pleads in court on
behalf of his employer or otherwise. If he is not acting or
pleading on behalf of his employer, then he ceases to be an
advocate. If the terms of engagement are such that he does
not have to act or plead, but does other kinds of work, then
he becomes a mere employee of the Government or the
body corporate. Therefore, the Bar Council of India has
understood the expression "advocate" as one who is actually
practising before courts which expression would include
even those who are law officers appointed as such by the
Government or body corporate."
(emphasis supplied)
"
Judgment - W.P.1526/1995
30.
(1999) 3 Supreme Court Cases176, the Apex Court inter alia held thus :"25. Section 49(1)(ag) also deals with the class or
category of persons entitled to be enrolled as advocates.
Thus, by the said provision, the Bar Council of India in
exercise of its rule-making power can add to the class of
persons contemplated by Section 29 by enlarging the said
class of advocates entitled to practise as full-fledged
advocates. Entitlement to practise the profession of Law
necessarily means full-fledged entitlement to plead and
argue cases of their clients before the courts of law. There
cannot be any truncated right to practise the profession of
Law which is sought to be culled out by Shri P.P. Rao,
learned Senior Counsel for the Bar Council of India on a
conjoint reading of Sections 29 and 49(1)(ag) of the Act."
(emphasis supplied)
31.
see
732, has
"3.
It will be seen from the above provisions that unless a
person is enrolled as an advocate by a State Bar Council, he
shall have no right to practise in a court of law or before any
other Tribunal or authority. Once a person fulfils the
requirements of Section 24 for enrolment, he becomes
entitled to be enrolled as an advocate and on such enrolment
he acquires a right to practise as stated above. Having thus
acquired a right to practise he incurs certain obligations in
regard to his conduct as a member of the noble profession.
The bar Councils are enjoined with the duty to act as
sentinels of professional conduct and must ensure that the
dignity and purity of the profession are in no way
undermined.
Its job is to uphold the standards of
professional conduct and etiquette. Thus, every State Bar
Council and the Bar Council of India has a public duty to
perform, namely, to ensure that the monopoly of practice
granted under the Act is not misused or abused by a person
who is enrolled as an advocate. The Bar Councils have
been created at the State level as well as the Central level
not only to protect the rights, interests and privileges of its_
Judgment - W.P.1S26/199S
reported in AIR 1975 S.C. 2202, has inter alia held thus :......... There is no statutory provision decisive of this
issue (whether a pleader can compromise a Suit in the
interest of his client, though the vakalatnama is silent) and
we have to garner the principles from various factors like the
status and significance of the legal profession in society, the
wider powers conferred on lawyers as distinguished from
ordinary agents on account of the triune facets of the role of
an advocate vis-a-vis the client, the Court and the public and
its traditions and canons of professional ethics and etiquette.
Above all, the paramount consideration that the Bench and
the Bar form a noble and dynamic partnership geared to the
great social goal of administration of justice puts the lawyer
appearing in the Court in a class by himself and to compare
him with an ordinary agent may be to lose sight of the lawyer
as engineer of the rule of law in society."
(bracketed portion is supplied)
33.
"6.
A brief historical survey of the functions, rights and
duties of legal practitioners in this country may facilitate
appreciation of the contentions of the parties. Before the
Indian High Courts Act of 1861 (24 and 25 Vict. Ch. 104)
was enacted, there were, in the territories subject to the
Judgment - W.P.1526/1995
Judgment
- W.P.152611995
Mukund S. Bhide reported in AIR 1952 Bom 296, has inter alia held thus :''Therefore, his right to practise is controlled by this
important provision that any other law for the time being in
force may restrict or take away his right. Therefore, if the
Co-operative Societies Act were to provide that an advocate
of the High Court of Bombay shall not practise before the
arbitral tribunal set up under that Act, then the right of the
advocate will be circumscribed by the provisions of that law.
It should be remembered that it is not the fact that a man
has passed a law examination or has acquired a law degree
that entitles him to practise in Courts of law; his right to
practise depends upon his being enrolled as an advocate
and he is enrolled as an advocate on terms and conditions
laid down in the Bar Councils Act. Therefore, as I said
before, his very charter which entitles him to practise lays
down conditions and limitations, and one of the conditions
and limitations is that he can only practise before such
tribunals as the law permits him and he may not practise
before such tribunals as the law lays down as being
prohibited to lawyers."
(emphasis supplied)
In the light of the aforesaid decisions, counsel for respondent
No.12 is submitted that the expression "right to practise the profession of
law" is restricted to the practise in litigious matters and cannot be extended
to the persons practising in non-litigious matters.
35.
Indian Bar Councils Act, 1926 was enacted with a view to consolidate and
Judgment - W.P.1S26/199S
amend the law relating to the legal practitioners entitled to practice in certain
Courts in the Provinces of India. The 1961 Act was enacted by repealing the
1926 Act. Therefore, in the absence of any intention to the contrary, it must
be held that the 1926 Act as well as the 1961 Act provide for the rights and
obligations of the legal practitioners practising the profession of law before
the Courts / Tribunals / other authorities. The submission is that when a
statute is repealed and re-enacted and words in the repealed statute are
reproduced in the new statute, then, ordinarily, the words in the re-enacted
statute should be interpreted in the sense the said words in the repealed Act
were judicially interpreted. In support of the above contention, he relied on a
decision of the Apex Court in the case of State of Madras VIs. Gannon
Dunkerley & Co. reported in AIR 1958 S.C. 580 and a decision of the Apex
Court in the case of Bengal Immunity Co. Limited VIs. State of Bihar
reported in AIR 1955 S.C. 661.
36.
expression 'to practice the profession of law' in Section 29 of the 1961 Act
applies to persons practising in litigious matters as well as non-litigious
matters, then and in that event, the liaison activities carried on by the
respondent No.12 cannot be said to fall in any of the above two categories,
because the activity carried by their liaison office in India was only a liaison
activity and not an activity covered under the 1961 Act and, therefore, the
permission granted by RBI under Section 29 of the 1973 Act to carryon the
liaison activities in India cannot be faulted.
37.
Judgment - W.P.1526/1995
performed the liaison activities within the frame work of the terms and
conditions imposed by the RBI. The report submitted by the Officers of RBI
bear testimony to the claim of respondent NO.12. He submitted that the
argument that the respondent No.12 ought to have applied for permission
under Section 30 of the 1973 Act is without any merit because that section
requires foreign nationals to take prior permission before taking up
employment etc. in India wherein the foreign exchange acquired would be
required to be remitted outside India. In the present case, the foreign law
firms were not taking up any employment in India and they were not seeking
to carryon trade or business in India which involved forwarding remittances
outside India. Therefore, the respondent No.12 could not have applied for
permission under Section 30 of the 1973 Act. For all the aforesaid reasons,
Mr.Seervai submitted that the permission granted by RBI to open liaison
offices in India under Section 29 of the 1973 Act was valid and to such a
case the 1961 Act would not be applicable.
38.
39.
40.
Judgment - W.P.1526/1995
41.
liaison activities carried on by the foreign law firms in India? In the affidavit
in reply, these foreign law firms have stated that they have opened the
liaison offices in India mainly to act as a coordination and communications
channel between the head office I branch offices and its clients in and
outside India. Since the Head Office and the branch offices of the foreign
law firms are engaged in providing various legal services to their clients
carrying on wide range of businesses all over the world, the liaison activity
carried on in India, namely, to act as a coordination and communication
channel would obviously be relating to providing legal services to the clients.
The respondent No.12 has further claimed in its affidavit in reply that their
liaison activity inter alia included providing "office support services for
lawyers of those offices working in India on India related matters" and also
included drafting documents, reviewing and providing comments on
documents, conducting negotiations and advising clients on international
standards and customary practice relating to the client's transaction etc. It is
contended by the respondent No.12 to 14 that they never had and has no
intention to practise the profession of law in India. Thus, from the affidavit in
reply, it is evident that the liaison activities were nothing but practising the
Judgment
- W.P.152611995
42.
firms could carryon the practise in non litigious matters in India by obtaining
permission from R.B.I. under section 29 of the 1973 Act? Section 29 of the
1973 Act provides that without the permission of RBI, no person resident
outside India or a person who is not a citizen of India but is resident in India
or a Company which is not incorporated in India shall establish in India a
branch office or other place of business, for carrying any activity of a trading,
commercial or industrial nature. Foreign law firms engaged in practising the
profession of law in the foreign countries cannot be said to be engaged in
industrial, commercial and trading activities.
43.
It is not the case of the foreign law firms that the activity carried
on by their liaison offices in India are different from the activity carried on by
them at their head office and the branch offices world over. In fact, it is the
__J
"
Judgment - W.P.1526/1995
specific case of respondents No.12 to 14 that the main activity at their liaison
offices in India was to act as a coordination and communication channel
between the head office / branch office and its clients in and outside India.
Thus, the activity carried on by the foreign law firms at their Head Office,
branch offices and liaison offices in India were inextricately linked to the
practise in non litigious matters. Section 29 of the 1973 Act relates to
granting permission for business purposes and not for professional purposes
and, therefore, the RBI could not have granted permission to these foreign
law firms under Section 29 of the 1973 Act.
44.
had approached the Foreign Investment Promotion Board (FIPB for short) a
High Powered body established under the New Industrial Policy seeking
their approval in the matter. The FIPB had rejected the proposal submitted
by the foreign law firms. Thereafter, these law firms sought approval from
RBI and RBI granted the approval in spite of the rejection of FIPB. Though
specific grievance to that effect is made in the petition, the RBI has chosen
not to deal with those grievances in its affidavit in reply. Thus, in the present
case, apparently, the stand taken by RBI & FIPB are mutually contradictory.
45.
46.
Judgment - W.P.1S26/1995
question, we may quote Sections 29, 30, 33 and 35 of the 1961 Act, which
read thus:
(ii)
(iii)
33.
Advocates alone entitled to practise. - Except as
otherwise provided in this Act or in any other law for the time
being in force, no person shall, on or after the appointed day,
be entitled to practise in any Court or before any authority or
person unless he is enrolled as an advocate under this Act."
35. Punishment of advocates for misconduct - (1) Where
on receipt of a complaint or otherwise a State Bar Council
has reason to believe that any advocate on its roll has been
guilty of professional or other misconduct, it shall refer the
case for disposal to its disciplinary committee.
(i-A) The State Bar Council may, either of its own motion or
on application made to it by any person interested, withdraw
a proceeding pending before its disciplinary committee and
direct the inquiry to be made by any other disciplinary
committee of that State Bar Council.
(2) The disciplinary committee of a State Bar Council [***]
shall fix a date for the hearing of the case and shall cause a
notice thereof to be given to the advocate concerned and to
the Advocate-General of the State.
(3) The disciplinary committee of a State Bar Council after
Judgment - W.P.1526/1995
1961 Act is declaratory in nature and the said section merely specifies the
persons who are entitled to practise the profession of law. According to the
respondent Nos. 12 to 14, the expression 'entitled to practise the profession
of law' in section 29 of the 1961 Act does not specify the field in which the
profession of law could be practised. It is section 33 of the 1961 Act which
provides that advocates alone are entitled to practise in any Court or before
any authority or person. Therefore, according to respondent Nos.12 to 14
the 1961 Act applies to persons practising as advocates before any Court /
authority
Judgment - W.P.1526/1995
question, therefore, to be considered is, whether the 1961 Act applies only to
persons practising in litigious matters, that is, practising before Court and
other authorities?
48.
Act, it is stated that the main object of the Act is to establish All India Bar
Council and a common roll of advocates and Advocate on the common roll
having a right to practise in any part of the country and in any Court,
including the Supreme Court. Thus, from the Statement of Objects and
Reasons, it is seen that the 1961 Act is intended to apply to (one) persons
practising the profession of law in any part of the country and (two) persons
practising the profession of law in any Court including the Supreme Court.
Thus, from the statement of objects and reasons it is evident that the 1961
Act is intended to apply not only to the persons practising before the Courts
but it is also intended to apply to persons who are practising in non litigious
matters outside the Court.
49.
provides is that from the appointed day, there shall be only one class of
persons entitled to practise the profession of law, namely Advocates. It is
apparent that prior to the 1961 Act there were different classes of persons
entitled to practise the profession of law and from the appointee day all
these class of persons practising the profession of law, would form one
class, namely, advocates. Thus, section 29 of the 1961 Act clearly provides
that from the appointed day only advocates are entitled to practise the
profession of law whether before any Court / authority or outside the Court
Judgment - W.P.1S26/199S
50.
that it debars any person from appearing before any Court or authority
unless he is enrolled as an advocate under the 1961 Act. The bar contained
in section 33 of the 1961 Act has nothing to do with the persons entitled to
be enrolled as advocates under section 29 of the 1961 Act. A person
enrolled as an advocate under section 29 of the 1961 Act, mayor may not
be desirous of appearing before the Courts.
He may be interested in
practising only in non litigious matters. Therefore, the bar under section 33
from appearing in any Court (except when permitted by Court under Section
32 of the 1961 Act or any other Act) unless enrolled as an advocate does not
bar a person from being enrolled as an advocate under section 29 of the
1961 Act for practising the profession of law in non litigious matters. The
Apex Court in the case of EX-Capt. Harish Uppal (supra) has held that the
right to practise is the genus of which the right to appear and conduct cases
in the Court may be a specie. Therefore, the fact that section 33 of the 1961
Act provides that advocates alone are entitled to practise before any Court /
authority it cannot be inferred that the 1961 Act applies only to persons
practising in litigious matters and would not apply to person practising in non
litigious matters.
51.
It was contended that the 1961 Act does not contain any penal
Judgment
- W.P.1S26/199S
52.
No.12 on the decision of the Apex Court in the case of O.N. Mohindroo
(supra) in support of his contention that the 1961 Act applies only to persons
practising the profession of law before Courts / Tribunals / other authorities.
It is true that the Apex Court in the above case has held that the 1961 Act is
enacted by the Parliament in exercise of its powers under entry 77 and 78 in
List I of the Seventh Schedule to the Constitution. However, the fact that
entry 77 and 78 in List I refers to the persons practising before the Supreme
Court and the High Courts, it cannot be said that the 1961 Act is restricted to
Judgment - W.P.1526/1995
the persons practising only before the Supreme Court and High Courts.
Practising the profession of law involves a larger concept whereas,
practising before the Courts is only a part of that concept. If the literal
construction put forth by the respondents is accepted then, the Parliament
under entry 77 & 78 in List I of the Seventh Schedule to make legislation
only in respect of the advocates practising before the Supreme Court / High
Courts and the Parliament cannot legislate under that entry in respect of
advocates practising before the District Courts / Magistrate's Courts / other
Courts / Tribunals / authorities and consequently, the 1961 Act to the extent
it applies to advocates practising in Courts other than the High Courts and
Supreme Court would be ultra vires the Constitution.
Such a narrow
contesting
respondents.
53.
Similarly, in all other cases relied upon by the counsel for the
Judgment - W.P.lS26/199S
all those decisions relied upon by the counsel for the respondents are
distinguishable on facts.
54.
55.
held that the 1961 Act applies to persons practising in non-litigious matters,
then no bureaucrat would be able to draft or give any opinion in non-litigious
matters without being enrolled as an advocate. There is no merit in the
above argument, because, there is a distinction between a bureaucrat
drafting or giving opinion, during the course of his employment and a law
firm or an advocate drafting or giving opinion to the clients on professional
basis.
Judgment
- W.P.1S26/199S
non litigious matters, that is, drafting documents / giving opinion or rendering
any other legal assistance are answerable to none. To avoid such anomaly,
the 1961 Act has been enacted so as to cover all persons practising the
profession of law be it in litigious matters or in non-litigious matters within the
purview of the 1961Act.
56.
The argument that the 1961 Act and the Bar Councils
constituted thereunder have limited role to play has been time and again
negatived by the Apex Court. Recently, the Apex Court in the case of Bar
Council of India Vis. Board of Management, Dayanand College of Law
reported in (2007) 2 SCC 202 held thus:-
" It may not be correct to say that the Bar Council of India is
totally unconcerned with the legal education, though primarily
legal education may also be within the province of the
universities. But, as the apex professional body, the Bar
Council of India is concerned with the standards of the legal
profession and the equipment of those who seek entry into that
profession. The Bar Council of India is also thus concerned
with the legal education in the country. Therefore, instead of
taking a pendantic view of the situation, the State Government
and the recommending authority are expected to ensure that
the requirement set down by the Bar Council of India is also
complied with. "
Thus, when efforts are being made to see that the legal profession
stand tall in this fast changing world, it would be improper to hold that the
1961 Act and the Bar Council constituted thereunder have limited role to
play in the field relating to practising the profession of law.
57.
Judgment - W.P.1526/1995
58.
It may be noted that Rule 6(1) in Chapter III Part VI of the Bar
Council of India Rules framed under section 49(1) (ah) of the 1961 Act
provides that an advocate whose name has been removed by an order of
the Supreme Court or a High Court or the Bar Council as the case may be,
shall not be entitled to practise the profession of law either before the Court
and authorities mentioned under section 30 of the 1961 Act, or in chambers,
or otherwise. The above rule clearly shows that the chamber practise,
namely, practise in non litigious matters is also within the purview of the
1961 Act.
59.
Counsel for the Union of India had argued that the Central
Government is actively considering the issue relating to the foreign law firms
practising the profession of law in India. Since the said issue is pending
before the Central Government for more than 15 years, we direct the Central
Government to take appropriate decision in the matter as expeditiously as
possible. Till then, the 1961 Act as enacted would prevail, that is, the
persons practising the profession of law whether in litigious matters or non
Judgment - W.P.1S26/1995
litigious matters would be governed by the 1961 Act and the Bar Councils
framed thereunder, apart from the powers of the Court to take appropriate
action against advocates who are found guilty of professional misconduct.
60.
For all the aforesaid reasons, we hold that in the facts of the
present case, the RBI was not justified in granting permission to the foreign
law firms to open liaison offices in India under Section 29 of the 1973 Act.
We further hold that the expressions to practise the profession of law' in
I
section 29 of the 1961 Act is wide enough to cover the persons practising in
litigious matters as well as persons practising in non litigious matters and,
therefore, to practise in non litigious matters in India, the respondent Nos.12
to 14 were bound to follow the provisions contained in the 1961 Act. The
petition is disposed of accordingly with no order as to costs.
Chief Justice
J.P. Devadhar, J.
OF 2015
Position of Parties
IN THE MAnER OF
In the
In this
High Court
Court
NOTA PARTY
PETITIONER
VERSUS
1.
2.
3.
4.
Respondent No.1
Respondent No.2
Respondent NO.3
Respondent No.4
41
.~
....
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
Respondent No.5
Respondent No. 7
Respondent No. 8
Respondent NO.9
Respondent No. 10
Respondent No. 6
Respondent No. 12
Respondent No. 13
Respondent No. 14
Respondent No. 11
I.
I.
15.
16.
Respondent No. 15
TO
THE HON'BLETHE CHIEFJUSTICE
AND HIS COMPANIONJUDGESOF
THE SUPREMECOURTOF INDIA
HUMBLE PETITION
OF
PETITIONERABOVENAMED
THE
MOSTRESPECTFULLY
SHOWETH:
1. The Petitioner seeks leave to assail the impugned Judgment and final order
dated 16 December 2009 passed by the Hon'ble High Court of Judicature at
Bombay in Writ Petition (C) No. 1526 of 1995 by way of a Special Leave
Petition under Article 136 of the Constitution of India. The Petitioner is
aggrieved by the impugned order whereunder the Hon'ble High Court has
erroneously held that to practice the profession of law in India, a foreign law
firm has to fulfill the qualification of being enrolled as advocates under the
AdvocatesAct, 1961.
lA. It is submitted that no Letter Patents Appeal lies against the impugned
Judgment and final order dated 16 December 2009 passed by the Hon'ble High
Court of Judicature at Bombay in Writ Petition (C) No. 1526 of 1995.
2. QUESTIONS OF LAW:
The following substantial questions of law arise for due consideration of
this Hon'ble Court:-
the
C. Whether
there
Advocates
Act,
is any restriction
1961 and/or
the
Rules
D. Whether there is any bar under the Advocates Act, 1961 and/or
the Bar Council of India Rules which prohibit the foreign law firms
and foreign
qualified
lawyers from
practicing
foreign
law on
E. Whether there is any bar under the Advocates Act, 1961 and/or
the Bar Council of India Rules which prohibit the foreign law firms
from establishing their offices in India and employing/retaining
Indian qualified lawyers for practicing Indian Law in India?
-.
~
H. Whether the Hon'ble High Court was justified in holding that the foreign
lawyers cannot come to India and conduct non-litigious practice in the field
of foreign law and/or on international legal issues, in light of the aims and
objects of the International Commercial Arbitration introduced in the
Arbitration and Conciliation Act, 1996 as also in the national interest of
India vide its policy to internationalize the fraternity of law in India?
5. GROUNDS:
Leaveto Appeal is sought for on the following amongst other grounds:
5.1.
5.2.
5.3.
5.5.
India. The Advocates Act and the BCI Rules only apply to the
practice of Indian law, except in so far as set out at paragraphs
24 to 26 hereinbelow. It does not regulate the profession of
foreign law. The profession of foreign law is governed by laws
of each foreign state.
5.7.
lawyer
and/or
an
Indian
citizen,
who
is also
under Article
19(1)(g)
of
the
Constitution of India.
5.B.
An
5.9.
(a)
he is a citizen of India:
(b)
(c)
(i)
before the 12th day of March, 1967, from any University in
the territory of India; or
(iii) after the 12th day of March, 1967, save as provided in subclause (iiia), after undergoing a three year course of study in law
from any University in India which is recognized for the purposes
of this Act by the Bar Council of India;
(ii)
before any tribunal or person legally authorised to take
evidence; and
(iii) before any other authority or person before whom such
advocate is by or under any law for the time being in force
entitled to practise.
5.10. The Petitioner submits that a reading of Sections 24, 29, 30 and
33 clearly shows that it deals with persons entitled to practice
the profession of Indian law. It does not restrict a person or a
duly qualified advocate from practicing 'a foreign law, if that
person is also duly qualified under the rules and regulations
governing the practice of such foreign law.
It is respectfully
Advocates Act. Both these bodies, i.e. the SBCsas well as the
BCI have clearly demarcated responsibilities enumerated under
Sections 6 and 7 of the Advocates Act respectively.
Under
5.12. In fact within a foreign law firm, as is also the case with a
domestic law firm, it can only be a duly Indian qualified
advocate who would be entitled to practice Indian law.
Therefore, if a foreign law firm intends to practice Indian law, it
must necessarily eng~ge an Indian advocate for providing the
service in relation to Indian law.
now
have the
opportunity
of
working
in
"Chapter X
Legal Services
10.49 Legal services have been growing at a steady rate of
8.2 per cent in each of the years from 2005-6 to 2011-12.
The Indian legal profession today consists of approximately
1.2 million registered advocates, around 950 law schools,
and approximately 4 to 5 lakh law students across the
country. Every year, approximately 60,000-70,000 law
graduates join the legal profession in India. India is ranked
45, with a score of 4.5, in terms of judicial independence by
the
Global Competitiveness Report 2012-13, an
improvement from 51st rank in 2011-12 ....
"Chapter X
Legal Services
10.39 Legal services have been growing at a steady rate of 8.2
percent in each of the years from 2005-06 to 2012-13. India is
ranked 40, with a score of 4.7, in terms of judicial
independence by the Global Competitiveness Report 2013-14,
an improvement from 45th rank in 2012-13. As regards
efficiency of the legal framework in settling disputes, India is
ranked 62nd, with a score of 3.8, a decline of three positions
from 59th rank a year before. India is ranked 48th when it
comes to the efficiency of the legal framework in chalienging
regulations, with a score of 3.8, an improvement from 52nd
position in the previous year.
Further, as
5.17. Further, the High Court in its impugned judgment has held that
"practice of the profession of law" under Sections 29 and 30 of
the Advocates Act includes litigious, i.e. appearances and filing
documents before the Courts as well as non-litigious, i.e.
advisory practice in India. The basis of the judgment for
disallowing a foreign law firm from practicing is based on the
erroneous premise that a foreign law firm is not registered
under the Advocates Act. The Petitioner respectfully submits
that such reasoning is based on the incorrect premise and on
an incorrect appreciation of what constitutes a law firm,
regulated by the Advocates Act and the BCI Rules and not law
firm.
5.18. It is respectfully submitted that the Hon'ble Madras High Court,
in the impugned judgment,
position comprehensively.
5.20.
The
practice
5.21. Because every country has its own independent set of rules to
regulate the practice of the profession of law.
York,
and in the
United
Kingdom,
the
In fact, in New
to carry on
In the United
Bar Standards
The
"Part I - Preliminary
General Purpose of the Code
106. Subject to the International Practice Rules (reproduced in
Annex A) this Code applies to International work and whether a
barrister is practising in England and Wales or elsewhere.
1. "International
performed
outside
(ii)
supply legal services in connection with any proceedings or
contemplated proceedings in England and Wales (other than as an
expert witness on foreign law),
shall not be treated as a practising barrister for the purposes of
the Code.
In a case
Conduct, it is stated:
"RULE 8.5:
DISCIPLINARY AUTHORITY AND CHOICE OF LAW
of where the
lawyer's conduct occurs. A lawyer may be subject to the
disciplinary authority of both this state and another jurisdiction
where the lawyer is admitted for the same conduct. [emphasis
supplied]
submitted
As
5.28. In this regard, three provisions of the Advocates Act, when read
together provide the basis for permitting foreign nationals to
practice Indian law in India.
"24. Personswho may be admitted as advocates on a State roll.(1) Subject to the provisions of this Act, and the rules made
thereunder, a person shall be qualified to be admitted as an
advocate on a State roll, if he fulfills the following conditions,
namely:-
60
(a) he is a citizen of India:
Provided that subject to the other provisions contained in this Act,
a national of any other country may be admitted as an advocate
on a State roll, if citizens of India, duly qualified, are permitted to
practise law in that other country;
(iv) in any other case, from any University outside the territory of
India, if the degree is recognized for the purposes of this Act by
the Bar Council of India
5.29. From a bare perusal of the Advocates Act, it is evident that the
Advocates Act does not proscribe foreign citizenship as a bar on
enrolling as an advocate. In fact the Advocates Act expressly
permits foreign nationals who have obtained degrees outside
India to be enrolled with the SBCs, subject to conditions laid
down by the BCI. The BCI Rules as they stand, have not
imposed any restriction on such enrollment.
61
5.30. The Petitioner further states and submits that the provisions of
the Advocates Act are in fact aligned with the international
standards on the same subject.
Typically, citizenship of a
Indian
qualified
lawyers
to
establish
a practice
in those
It is
No
Icountry
.
1.
r
Australia
Restrictions
N/A
-r~~----+-La-w------------------+_---------------2. Canada
Advisory serviceson Indian
law and third country law
(except Canadian law) and
International Law
on practice
No restrictions on
independent practice.
-I
I
China
3.
Commercial presence
restricted to representative I
office only
I
II---~
European
Community
N/A
----~
f------+------+--------------t-----------------__j
5.
Japan
I
I
I
i
6.
Malaysia
I
L__-'I
through a corporation
incorporated in the Federal
I
lMa,aY:~
J_T_e_rn~~_of_La~ba~n.
_______
i
I
I
J
7.
Nepal
8.
New
Zealand
N/A
9.
Singapore
Subject to obtaining
necessary license that will
be reviewed on a case to
case basis.
I
10. South Africa All laws (including South
African law)
No restrictions on the
practice of foreign law.
11. Switzerland
12. Thailand
13. Turkey
14. United
Kingdom
15. United
1
5.33. In this regard, the Petitioner also states that India as a country
loses out on economic benefit by not allowing such lawyers to
practice from India, as well as not allowing foreign lawyers to
practice their foreign laws in India for the purposes of servicing
the international requirements of Indian clients. Furthermore, it
is respectfully submitted that under the Advocates Act and the
BCI Rules, which regulate the practice of Indian law by
advocates enrolled across the various states in the country,
allows a person who has obtained his legal education from a
University outside of India, to also qualify as an advocate under
the Advocates Act.
(i)
pursuing the course for a period not less than three years in case
the degree in law is obtained Bar Council of India after graduation
in any branch of knowledge or for a period of not less than five
years if admitted into the integrated course after passing +2 stage
in the higher secondary examination or its equivalent; and
(ii)
conducted by the
are specifically
needed to
practice
law in India
and
countries have
basis of the
BCI recognition
to the
University.
The
(,b
may also entitle that person to qualify as a lawyer in that
jurisdiction, which would facilitate that person to possess dual
qualification, one in India and one in the foreign jurisdiction. In
fact it is evident that it would be unconstitutional to suggest
that an Indian citizen who has duly obtained a law degree from
a foreign University and is thus duly qualified to practice Indian
law and the law of the foreign state, would be disallowed from
doing such a practice from India.
5.38. The Petitioner also respectfully submits that the Advocates Act
does not create a bar on Indian law firms from setting up
offices in a foreign jurisdiction.
The
Petitioner is of the view that the stand of the BCI towards dual
qualified lawyers as well as only foreign qualified lawyers
(Indians or non-Indians) is limiting the exposure to international
law to the young lawyers of today in India. The Petition states
the deprivation of exposure to the young lawyers of today may
in fact leave the legal profession in India stagnant, and the
Indian lawyers may not be able to compete with their
international counter parts in the years to come.
6. GROUNDS
FOR INTERIM
RELIEF:
7. MAIN PRAYER:
136 of the
(B) Pass any other order and/or directions as this Hon'ble Court may
deem fit and proper.
8.INTERIM
RELIEF:
FILED BY:
Nakul Dewan,
Jaikriti Jadeja,
Azal Khan
Advocates
(Vikash Singh)
Advocate for the Petitioner
SETTLED BY
Mr. Harish N. Salve
Senior Advocate
New Delhi
JURISDICTION
OF 2015
... RESPONDENTS
CERTIFICATE
Certified
that
the
Special
Leave
Petition
IS
pleadings before the Court whose order is challenged and the other
documents relied upon in those proceedings. No additional facts,
documents or grounds have been taken therein or relied upon in the
Special Leave Petition.
documents/Annexures
-'-o1,r
OF 2015
..... Respondents
AFFIDAVIT
I, Jaikriti Sinh Jadeja, 0/0 Shri Devendra Sinh Jadeja, Aged 28 years, working
at B-5/204, Safdarjung Enclave, New Delhi 110029, do hereby solemnly affirm
and state as under:
1. That I am the Secretary of the Petitioner in the above mentioned
Special Leave Petition and as such I am weJI conversant with the facts
and circumstances of the case and competent to swear the present
affidavit.
2
That I have gone through a copy of the List of Dates from running
pages B to
_p_
paragraphs 1 to ~
yo
to
3J._Q_
3.
4.
That the annexures attached to the present Special Leave Petition are
true and correct copies of their respective originals.
VERIFICATION
Verified at
N.'ZW .. ~~.
on this .J.r..t~
the above affidavit are correct and true to the best of my knowledge and belief
nothing material has been concealed therefrom.
APPENDIX
ADVOCATES
ACT, 1961
(1) Subject
to the provisions of this Act, and the rules made thereunder, a person
shall be qualified to be admitted as an advocate on a State roll, if he
fulfills the following conditions, namely:-
from any University in the territory of India; or (ii) before the 15th August,
1947, from any University in any area which was comprised before that
date within India as defined by the Government of India Act, 1935; or [(iii)
after the 12th day of March, 1967, save as provided in sub-clause (iiia),
after undergoing a three year course of study in law from any University
in India which is recognised for the purposes of this Act by the Bar
Council of India; or (iiia) after undergoing a course of study in law, the
duration of which is not less than two academic years commencing from
the academic year 1967-68 or any earlier academic year from any
University in India which is recognised for the purposes of this Act by the
Bar Council of India; or] [(iv) in any other case, from any University
outside the territory of India, if the degree is recognised for the purposes
of this Act by the Bar Council of India] or; [he is barrister and is called to
the Bar on or before the 31st day of December, 1976 [or has passed the
article clerks examination or any other examination specified by the High
Court at Bombay or Calcutta for enrolment as an attorney of that High
Court;] or has obtained such other foreign qualification in law as is
recognised
an advocate
may be specified in the rules made by the State Bar Council under this
Chapter; 6[(f) he has paid, in respect of the enrolment,
any, chargeable
stamp duty, if
enrolment fee payable to the State Bar Council of [six hundred rupees
and to the Bar Council of India, one hundred and fifty rupees by way of a
bank draft drawn in favour of that Council]:
a certificate
as may be
prescribed, the enrolment fee payable by him to the State Bar Council
shall be 1[one hundred rupees and to the Bar Council of India, twenty-
declaring
him to
have
passed
that
examination.]
(2)
accordance with the provisions of this Act, not later than two years from
the appointed day, and (b) fulfils the conditions specified in clauses (a),
(b), (e) and (f) of sub-section (1). [(3) Notwithstanding anything contained
in sub-section (1) a person who-
enrolment in accordance with the provisions of this Act; and (ii) fulfils the
conditions specified in clauses (a), (b), (e) and (f) of sub-section (1).]
29. Advocates to be the only recognised class of persons entitled to practise
law.-Subject
thereunder, there shall, as from the appointed day, be only one class of
persons entitled to practise the profession of law, namely, advocates.
45. Penalty for persons illegally practising in courts and before other
authorities.-Any
The Bar
Council of India may make rules for discharging its functions under this
Act, and, in particular, such rules may prescribe-
for such
membership; (ac) the time within which and the manner in which effect
may be given to the proviso to sub-section (2) of section (3); (ad) the
manner in which the name of any advocate may be prevented from
being entered in more than one State roll; (ae) the manner in which the
seniority among advocates may be determined; [(af) the minimum
qualifications required for admission to a course of degree in law in any
recognised University;] (ag) the class or category of persons entitled to
be enrolled as advocates; (ah) the conditions subject to which an
advocate shall have the right to practise and the circumstances under
which a person shall be deemed to practise as an advocate in a court;]
(b) the form in which an application shall be made for the transfer of the
name of an advocate from one State roll to another; (c) the standard of
professional conduct and etiquette to be observed by advocates; (d) the
standards of legal education to be observed by universities in India and
the
inspection
of universities
for that
purpose;
[(2) Notwithstanding
anything contained in the first proviso to sub-section (1), any rules made
with reference to clause (c) or clause (gg) of the said sub-section and in
force
immediately
before
commencement
of
the
Advocates
(Amendment) Act, 1973 (60 of 1973), shall continue in force until altered
or repealed or amended in accordance with the provisions of this Act.]
CRIMINAL PROCEDURE CODE, 1973
477. Power of High Court to make rules. (1) Every High Court may, with the
previous approval of the State Government, make rules-
(a) as to the
so
made
and
determining
the
authority
by which
such
A.K. Balaji
versus
1. The Government of India,
rep. by its Secretary to Government,
Law Department,
4th Floor, A-Wing,
Shastri Bhawan,
New Delhi 110001.
2. The Government of India,
rep. by its Secretary to Government,
Home Department, North Block,
Central Secretariat,
New Delhi 110 001.
3. The Government of India,
rep. by its Secretary to Government,
Finance Department, North Block,
Lok Nayak Bhavan, New Delhi.
4. The Government of India,
rep. by its Secretary to Government,
Department of External Affairs,
Akbar Bhavan, New Delhi 110021.
5. The Government of India,
rep. by its Secretary to Government,
Income Tax Department,
7th Floor, Mayur Bhavan,
Connaught Circle,
New Delhi 110 055.
6. The Reserve Bank of India,
Central Office,
Centre 1, Word Trade Centre,
Cuffe Parade, Colaba,
Mumbai 400 005.
7. The Bar Council of India,
21, ROLlseAvenue,
Institutional Area,
New Delhi 110 002.
8. The Bar Council of Tamil Nadu,
rep. by its Secretary,
High Court Campus,
go
39. Clyde & Co.,
51, Eastcheap,
London,
EC3M 1JP,
United Kingdom.
40. Bird and Bird LLP
15, Fetter Lane,
London EC4A 1JP,
United Kingdom.
41. Women LawyersAssociation,
rep. by its Secretary Mrs.V.Nalini,
High Court Buildings,
Chennai 104.
(R41 impleaded as per order of Court dated 07.07.2010
in M.P.No.2 of 2010 in W.P.No.5614 of 2010)
respondents 9
For Respondent 7
Mr.P.Chandrasekaran, SCGC
For Respondent
:: Mr.A.Navaneethakrishnan,
Advocate General
for Mr.S.Y.Masood
For Respondent
:: MS.P.T.Asha,
for M/s.Sarvabhauman
For Respondents
19,26,39
Associates
& 40
For Respondent 11
:: Mr.Satish Parasaran
For Respondent 12
:: Dr.Abhishek M.Singhvi
For Respondent 15
For Respondent 23
MS.D.Prasanna
Mr.K.S.Natarajan
Mr.Vineet Subramani
ORDER
The Hon;ble the Chief Justice
This writ petition has been filed under Article 226 of the
Constitution of India for the issuance of a Writ of Mandamus directing
the respondents 1 to 8 to take appropriate action against respondents 9
to 40 or any other Foreign Law Firm or Foreign Lawyers, who are
illegally practising the Profession of Law in India, and for a further
direction to forbear them from having any legal practice either on the
litigation
side
or
in the field
of non-litigation
and
commercial
2. The grounds on which the writ petitioner places his reliance are
summarized in a nutshell herein below :Enrolment:
(a) It is stated that the writ petitioner is an active practitioner of law
having enrolled himself in the State Roll maintained by the Bar Council
of Tamil Nadu as per Section 17 of the Advocates Act, 1961. It is stated
that to practice the profession of law in India, a person should be a
citizen of India and should possess a Degree in Law obtained from a
Recognised University within the Territory of India. It is further stated
that Nationals of any other country may also be admitted as an
Advocate on the State Roll, if citizens of India duly qualified are
permitted to practice law in such other country as per the rule of
reciprocity contained under Section 47 of the Advocates Act, 1961. It is
also stated that those persons who have obtained degree of law from
any University outside the Territory of India may also be permitted to
practice the profession of law in India provided that the said degree is
recognised by the Bar Council of India and subject to such conditions as
may be imposed by the Bar Council of India from time to time. The writ
petitioner, prima facie, states that the Law Graduates from India are not
allowed to practice the profession of law in United Kingdom, United
States of America, Australia and various other foreign nations.
That
It is
stated that allowing entry of foreign law firms without any reciprocal
arrangement similar to that of the arrangements prevailing in those
foreign countries should not be entertained, and foreign law firms should
not be allowed to exploit the Indian legal market without actually
opening up their domestic markets to the Indian lawyers.
Legal Bar:
(b) It is stated that in the absence of enrolment in any of the State Bar
Councils in accordance with the provisions of the Advocates Act, 1961,
the foreigners are not entitled to practice the profession of law in India
on account of the bar contained under Section 29 of the Advocates Act.
While the legal position is such, under the guise of LPO and conducting
seminars and arbitrations, the foreign lawyers are visiting India under
Visitors Visa and are earning money from their clients in India. By doing
so, they also violate the provisions of Income Tax Laws and Immigration
Laws, and also cause loss of revenue to our countrys Exchequer. They
have also opened up their offices in India and are actively doing legal
practice
in
the
fields
of
Mergers,
Take-overs,
Acquisitions,
Amalgamations, etc.
Disciplinary Authority:
(c) It is further stated that the legal profession in India is governed by
the various provisions of the Advocates Act, 1961 and, the disciplinary
rules and regulations, code of conduct and professional ethics framed
and practised from time to time. There is also a hierarchy of disciplinary
authorities such as the State Bar Council, Bar Council of India, Supreme
Court,
etc.
These
authority/control
authorities
can
exercise
their
disciplinary
maintained under the Advocates Act. Persons who are not on the Rolls
would not be subject to the disciplinary jurisdiction of these authorities.
As such, it is stated that if any person who is not subject to the
disciplinary control of the above said authorities is allowed to practice
the profession of law, he/she would go scot-free and would not be
subject to the supervision and disciplinary jurisdiction of the above said
authorities. Therefore, they should not be permitted to practice the
profession of law in our country.
Noble Profession :
(d) It is also stated that in India, legal profession is considered as a
noble profession, intended to serve the society, and not treated as a
business venture. But, it is not so for the foreign law firms, which are
treating it as a trade and business venture for earning money. It is
submitted that here in India, the lawyers are prohibited from advertising,
canvassing and soliciting work. No lawyer in India is permitted, either
through print media or through electronic media or in any other form, to
canvass or solicit work or market the profession. Whereas the foreign
law firms, who are impleaded here as respondents 9 to 40, are glaringly
advertising through their websites about their capabilities and they also
canvass and solicit work by assuring results. It clearly shows that they
are treating the legal profession as nothing short of a trade or business,
far different from the nobility attributed to it by Indian lawyers.
Reciprocity:
(e) It is stated that even though Indian lawyers are allowed to practice in
U.K. and U.S.A., the same is subject to enormous conditions and
restrictions and subject to passing of further tests conducted in the
respective countries. As such, it is not reciprocity in the real sense, as
permitted under Section 47 of the Advocates Act. It is stated that since
the law degree conferred by any University outside the Territory of India
has not been recognised by the Bar Council of India, nor the Bar
Council of India has framed any rules and regulations under Section
42(2) of the Advocates Act in this regard, until such time, there is
absolutely no scope for any foreign lawyer or foreign law firm to practice
the profession of law in India. It is stated that the Advocates Act not only
regulates the practice of advocates in courts alone, but it also regulates
the practice of legal profession in various other forms such as giving
legal opinion, drafting,
arbitration,
transacting business within the country and repatriating the funds out of
the country.
On the above stated grounds, the writ petitioner submits that the
practice of legal profession by the respondent foreign law firms or any
individual foreign lawyer is illegal and impermissible, and therefore, he
seeks immediate action.
advocates who are on the Rolls, but law firms as such are not required
to register themselves before any statutory authority, nor do they require
any permission to engage in non-litigation practice. Exploiting this
loophole, many accountancy and management firms are employing law
graduates who are rendering legal services, which is contrary to the
provisions of the Advocates Act. It is stated that the Government of
India along with the Bar Council of India is considering this issue and is
trying to formulate a regulatory framework in this regard. The 1st
respondent in his counter warns that if the foreign law firms are not
allowed to take part in negotiations, settling up documents and
arbitrations in India, it will have a counter productive effect on the aim of
on a reciprocity
countries
is under
consultation with the Bar Council of India. Finally, in the counter filed on
17.11.2011, it is stated that the Government of India has decided to
support the stand of the Bar Council of India that the provisions of the
Advocates Act, 1961 would apply with equal force to both litigious and
non-litigious practice of law, and it is only persons enrolled under
Section 24 of the Act, who can practice before the Indian Courts.
4. The Bar Council of India, which is the 7th respondent herein, in its
counter stated that the issue involved in the present writ petition is no
longer res integra and has been settled by the Bombay High Court by
holding that practice of law would include even non-litigious practice,
and therefore, foreign lawyers i.e., lawyers not enrolled as Advocates
under the provisions of the Advocates Act, 1961 would not be entitled to
practice law in India (In W.P.No.1526
no
appeal
was
preferred,
it attained
finality,
and
carrying
out
market
surveys
and
market
research,
and
-,
91
travel to the U.S. on a temporary basis for consultations on Indian law
issues. Hence, the petitioners submission
in respect of lack of
reciprocity was denied in the counter. It is stated that the Advocates Act,
1961 and the Bar Council Rules govern the practice of Indian law only
and they do not apply to the practice of foreign or non-Indian law.
Foreign lawyers, who are licensed in their jurisdictions,
are not
restrained by the Advocates Act, 1961 from advising their Indian clients
on foreign
in respect of
alleged inaction of the said respondents is the basis for the writ petition,
the petition ought to have been filed by the Association itself and the
writ petitioner has no locus standi to file the present writ petition. It is
stated that the Advocates Act and the Rules govern the practice of
Indian law only, and they do not govern the practice of foreign or nonIndian law. Therefore, as per prevailing law, foreign lawyers, including
lawyers from the 14th respondent law firm, are not required to and
cannot enrol as Advocates to practice non-Indian law. As per prevailing
law, such lawyers are not restrained from advising on foreign law within
the territory of India. As stated in the counter of the 11th respondent, the
14th respondent also in its counter denied the allegation that the
lawyers from India are restrained from practising law in the U.S.A. and it
is stated that in fact, Indian lawyers are practising law in the U.S.A. in
different forms, viz., opening permanent office in U.S.A. by submitting
(without examination) application certifying qualification to practice law
in India and also concurrently associating with the U.S. licensed lawyers
on specific matters on a fly-in and fly out basis to consult on Indian law
issues. It is denied in the counter that the 14th respondent is owning or
operating LPOs in India. It is further stated that the lawyers from the
14th respondent fly in and fly out of India on need basis to advise the
clients on international transactions, to which there is an India
component. To the extent Indian law is involved, such matters are
addressed by Indian lawyers enrolled under the Advocates Act, 1961. It
is stated that the absence of disciplinary control by the Bar Council of
India/State Bar Councilor the Supreme Court does not qualify as a valid
reason, in law, to restrain or prevent foreign lawyers from advising on
foreign law within the territory of India, as they are governed by the
disciplinary control of the concerned jurisdiction in the United States,
allegation that they are doing the practice of law as a business venture.
Finally, it is stated that if foreign lawyers and law firms are prevented
from advising on foreign law, within the territory of India in relation to
transactions with an Indian connection, the transaction costs for Indian
clients will increase considerably.
9. The 15th respondent in its counter stated that it is not at all practising
law in India. It is not licensed to and does not practice law in any
jurisdiction in the world, much less in India. It is a BPO company
providing wide range of customised and integrated services and
functions to its customers like word processing, secretarial support,
transcription
services,
fails to show violation of any constitutional or other legal right within the
territorial jurisdiction of this Court, and since he places reliance on the
general statements, the writ petition is liable to be dismissed in limine.
Like other respondents,
the
16th respondent
12. The respondent Nos.19, 26, 39, and 40 in their its counter affidavits
filed separately, however, on the same lines, inter alia state that they
are limited liability partnerships incorporated under the laws of England
and they provide legal services through law offices in a number of
countries of the world
France,
Singapore, Hong Kong etc. either through its branch offices located
there or through various legal entities. It is stated that they did not have
a law office in India and they did not give advice to its clients on Indian
law. Like other respondents, these respondents also pleaded dismissal
of the writ petition on the grounds of availability of efficacious alternative
remedy, and the same being premature and a publicity seeking writ
petition. These respondents also pleaded dismissal of the writ petition
on the ground that the issue involved in the writ petition clearly comes
within the domain of policy decision of the Government of India, and
therefore, it cannot be agitated before law courts. It is further stated that
merely on general statements, no writ can be issued. Like other
respondents, these respondents also narrated the position in England in
respect of foreign lawyers practising law in England and contended that
participation in seminars and conferences does not amount to practising
law in India.
13. Respondents Nos.20, 21, 24, 25, 27, 28, 30, 31, 32, 33, 34 and 38
filed separate counter affidavits on the same lines stating, inter alia, that
they do not have offices in India and they do not practice Indian law,
and hence, there is no cause of action against them and consequently,
this Court does not have jurisdiction over them. Like other respondents,
these respondents have also pleaded dismissal of the writ petition on
the grounds of it being premature, publicity seeking and availability of
efficacious alternative remedy. They state that their lawyers do not
practice Indian law, and therefore, they have not sought enrolment as
advocates under the Advocates Act, 1961, based on their foreign legal
qualification or otherwise.
Rules framed thereunder only govern the practice of Indian law and they
do not apply or govern the practice of foreign or non-Indian law.
Therefore, the lawyers from the respondent-law firms are not required to
enrol their name under the provisions of the Advocates Act. That apart,
as per the prevailing law, such lawyers are not restrained from advising
on foreign law within the territory of India. Answering the contention of
the writ petitioner that the Indian lawyers are not allowed to or subjected
to cumbersome
America, it is stated that the lawyers from India are not restrained from
practising law in USA and very many of them have opened their offices
in USA and many more of them are practising law on a fly in and fly out
basis. It is stated that no examination as such is conducted in USA for
practising law by foreign nationals. It is denied that the respondents
violated any Indian law, much less Indian Income Tax Law. On the
allegation of running LPOs in India, it is stated that the said respondents
does not own or operate LPOs in India. It is further stated that the
lawyers from the respondents fly in and fly out of India on need basis to
advise the clients on international transactions
or other U.S. or
Regarding regulating
29 is not giving
94
therefore, it cannot be subjected to the disciplinary control of Indian
authorities.
17. Respondent
maintain an office in India. It is stated that the issue involved in the writ
petition is a policy matter which comes under the domain of the
Executive, and hence, this Court has no jurisdiction to decide the same.
It is stated that the 35th respondent is an international law firm providing
legal services to its international clientele. As such, some Indian
businesses that have international legal requirements may consult
respondent 35 relying upon its international expertise and presence in
various jurisdictions.
35.
The
law and not on the practice of foreign law within the territory of India, the
36th respondents lawyers are not enrolled themselves as advocates
under the Advocates Act. It is stated that respondent 36 does not have
an office in any part of India or elsewhere, and it does not operate or
own any LPO in India. Therefore, the writ petition is thoroughly
misconceived. It is further stated that the lawyers from respondent 36 fly
in and fly out of India on a need basis to advise the clients on
international transactions or other matters involving Australian laws or
international ventures, to which there is an Indian component, whereas
the working of the Indian law is always entrusted with an Indian lawyer,
enrolled under the provisions of the Advocates Act. It is stated that the
petitioners apprehension is not justified since respondent 36, who has
no office in India, can never deprive the petitioner of any work that the
petitioner is competent and capable of carrying.
19. The 37th respondent in its counter, like other respondents denied
the fact of having an office in India, or running LPO in India. It is further
stated that it does not undertake litigation or non-litigation practice in
Indian Law, and only advises is clients with respect to regulatory laws,
trade, investment and market access issues, and intellectual property
issues with regard to Australia alone. The matters involving Indian law
are entrusted to the Indian advocates.
20. Respondent 33 has filed a rejoinder to the counter affidavit filed by
the 7th respondent viz., the Bar Council of India. In the said rejoinder,
respondent 33 denied the stand taken by the Bar Council of India that
the issue involved in the present writ petition is squarely covered by the
Bombay High Courts judgment dated 16.12.2009 in the case of Lawyers
Collective Vs. Bar Council of India reported in 2010 (112) Bombay Law
101
Reports 32. In the said case, the Bombay High Court rejected the
contention that practice of law, as per Section 29 of the Advocates Act,
is confined to litigation practice and on the contrary, held that the
expression to practice the profession of law in Section 29 encompasses
practice in relation to both litigation and non-litigation. The said '
judgment does not hold that the Advocates Act applies to the practice of
foreign law or international law within the territory of India. Further, the
said judgment does not support the contention that only advocates can
practice foreign law or international law in the territory of India as
contended by the petitioner in the writ petition.
Advocates Act, in its present form, does not deal with or prescribe the
qualifications for or provide for the regulatory framework for the practice
of foreign law or international law within the territory of India. It is also
denied in the rejoinder that only Indian citizens, who are duly qualified
as per Section 24 of the Advocates Act, are entitled to practice foreign
or international law within the territory of India.
including English and US law are not taught in Indian Law Colleges.
Therefore, lawyers with Indian law degrees clearly do not have the
knowledge to practice foreign law. On the contrary, most persons with
the requisite knowledge in foreign law will be non-citizens with a law
degree from a foreign university. As per the prevailing provisions of the
Advocates Act, such persons will not be entitled to enrol as advocates
without the special dispensation of the Bar Council. Therefore, the only
reasonable interpretation of the Advocates Act will be that it is a statute
which governs the practice of Indian law. It is stated that respondent
33 is not liable to be restrained from practising foreign law or
international law within the territory of India on the basis of the
resolution of the Bar Council of India or otherwise, because any such
besides being
countries may restrict or even prohibit the practice Indian law by Indian
lawyers in their territories, thus closing their markets to Indian lawyers.
21. Mr. AR.L. Sundaresan, learned senior counsel appearing on behalf
of the writ petitioner, while reiterating the grounds raised in the writ
petition, extensively relied on the provisions of the Advocates Act, 1961.
According to him, an advocate as defined in Section 2(a) of the Act
means an advocate entered in any roll. Section 24 makes it amply clear
as to who may be admitted as an advocate on a State roll, in that it
refers to only a citizen of India. However, the proviso to this Section
states that a national of any other country may also be admitted as an
advocate on a State roll, if only duly qualified citizens of India are
permitted to practise law in that country. The proviso, therefore, does
not give unfettered rights to citizens of other country to be admitted as
advocates on a State roll and it is to be done purely on the basis of the
principle of reciprocity that the other country also allows Indian nationals
to practise in their country. As per Section 29, one class of persons is
entitled to practise the profession of law and that is, the advocates.
Section 30 mandates that every advocate whose name is entered in the
State roll shall be entitled as of right to practise in all judicial forums
throughout
the country,
including
the Supreme
Court.
Section
33
Admittedly,
respondent-law
on any State
on the proviso
states that
by the
the
in that country
of law in India.
Sub-
of the kind
citizens
countries
of law in India.
the profession
of other
vs. Bar
22. It is interesting to note that in that case, the Bar Council of India as
well as the Bar Council
of Maharashtra
& Goa
had adopted
the
lawyers to practice Indian law in Indian Courts and that the Government
was still in the process of consulting
it was stated
In
these
international
establishments
entering
into
trade
Indian law in India is implicit in the Act and advising foreign law is not at
all barred. He submitted that there can be no two opinions about the
fact that if any of the foreign law firms allowed to practise in India in nonlitigious matters indulge in practising in litigious matters, then the penal
provisions of the Advocates Act would automatically be attracted and
the offenders are liable to be punished. He further submitted that the
principle of reciprocity should be given its due, given the fact that no
country in the world prohibits practice of Indian Law in their respective
country, wherever necessary.
According to the
learned counsel, by the present writ petition, the petitioner wants a ban
by way of judicial legislation on the entry of foreign law firms in India,
especially when there is no statutory ban in this behalf. This, he states,
would have serious consequences on foreign investment in the country,
in this ever expanding era of global economy.
25. The preliminary objection raised by Mr. Singhvi is that his clients are
not practising Indian law. According to him, none of his clients has an
office in India and in view of the fact that the US law firms do not
practise Indian law, the lawyers from these firms have not applied for
enrolment as advocates under the Advocates Act. The learned counsel
referred to the Arbitration and Conciliation Act, 1996 where a specific
provision is contained in Section 2(1)(f) which provides for international
commercial arbitration for resolving disputes arising out of legal
relationships where at least one of the parties is an individual or a body
corporate of a foreign origin. Even the Preamble to the aforesaid Act
states that the General
recommended
that
all countries
give due
consideration
to the
Nations Commission
on International
Trade
Law
commercial
The said
judgment of the Bombay High Court, not having been appealed against,
has attained finality.
Learned senior
counsel submitted that a resolution to the said effect was taken at the
Joint Consultative Conference of the Members of the Bar Council of
India and the Chairmen, Vice-Chairmen and Chairmen, Executive
Committee of the State Bar Councils held at Kochi on the 17th and 18th
of November, 2007 and the decision was arrived at after consultations
with the representatives of the respective State Bar Councils. Learned
senior counsel submitted that the term practice of law under Chapter IV
of the Act encompasses myriad functions performed by a lawyer and is
not confined to mere appearance/argument
Learned senior
counsel further submits that the petitioners contention that foreign law
firms should not be allowed to take part in negotiations, settling up
documents
and
arbitrations
will
be counter-productive,
because
when
the Government
International Arbitration.
wants
India to be a hub of
JJo
29. Mr. Krishnamoorthy also raised a question with regard to the
maintainability of the writ petition.
Cause of
interpreted inter alia to mean every fact which would be necessary for
the plaintiff to prove, if traversed, in order to support his right to the
judgment of the Court.
1J1
facts. Learned senior counsel also relied upon the judgment rendered
by the Supreme Court in the case of Neetu vs. State of Punjab reported
in A.I.R. 2007 S.C. 758, where it was observed that courts must do
justice by promotion of good faith, and prevent law from crafty
invasions. Courts must maintain the social balance by interfering where
necessary for the sake of justice and refuse to interfere where it is
against the social interest and public good. It was further observed that
no litigant has a right to unlimited draught on the Court time and public
money in order to get his affairs settled in the manner he wishes. Easy
access to justice
should
These respondents
categorically assert that they have not violated Indian income tax law or
any other
law.
According
services,
knowledge
management,
CRM database
11~
support, HR administration, trend awareness, finance & accounting,
billing, accounts payable, and general ledger, management reporting
and analysis, payroll management, hiring and intake administration,
project management etc.
respondent does not take instructions, render any legal advice in the
form of opinions etc. akin to that which is expected from a lawyer or a
law firm and hence, the respondent cannot be said to be engaging in
the practice of law. It is further stated that the customers of the 15th
respondent firm neither consider them as a law firm nor does the firm
appear before any courts, tribunals etc. anywhere in the world. Learned
senior counsel pointed out that it would be relevant to note that no reply
has been filed by the petitioner to the counter affidavit filed on behalf of
this respondent and moreover, since no issues involving the BPOs has
ever been raised in this writ petition, the writ petition cannot be
sustained as far as the 15th respondent is concerned.
32. Mr. Aravind P. Datar, learned senior counsel appearing for some
other foreign law firms also questioned the maintainability of the writ
petition. According to him, the writ petition does not state as to how the
cause of action has arisen within the jurisdiction of the State of Tamil
Nadu. He submitted that the tests laid down by the Supreme Court in
the judgment in State of UUaranchal vs. Balwant Singh Chaufal reported
in (2010) 3 S.C.C. 402, have not been satisfied in the instant writ
11~
..
petition. In the said case, the Supreme Court observed that courts must
factors
before entertaining
Public Interest
It is stated that
these respondents do not have any office in any part of India and they
do not practice Indian law through any offices in India or elsewhere, nor
do they operate or own any LPO in India.
respondents that their lawyers fly in and out of India on a need basis to
advise their clients on international transactions or other matters
involving Australian laws or international ventures to which there is an
Indian component and the working of the Indian law is always entrusted
to an Indian counterpart, from whom advise is sought with regard to the
extent Indian law is applicable in the given circumstances.
He
submitted that the averments made in the writ petition with regard to the
disciplining of Indian lawyers will not apply to the Australian firms. It is
further submitted that these respondents have adhered to the law
applicable with regard to advertising, canvassing and soliciting work and
maintaining their website.
statement that practice of law with respect to the Indian law has been
misunderstood
It is
to entertain
the writ
petition
as against
these
since these respondents, who do not have any office in India, can never
deprive the petitioner of any work that he is competent and capable of
carrying.
34. Mr. Satish Parasaran, learned counsel appearing for the 11th
respondent submitted that his client does not practice law in India and
does not have a physical presence here.
1J+
founded in the year 1836 having more than 300 lawyers and other
professions and its offices are located in New York, Washington DC,
Los Angeles, Chicago, Stamford, Parsippany and Brussels, Belgium. It
is got clients with diverse international legal issues who require legal
advice from different jurisdictions and different practices and countries.
The respondent has developed working relationships with local law
firms in different countries and jurisdictions, to whom it refers matters
and cases for getting advice for its clients.
clients of this respondent require legal advise in India, they refer work to
various Indian lawyers and law firms in India located in cities where
such advice is required. It has referred legal questions involving Indian
law to senior counsel and law firms in Delhi and Mumbai which are
enrolled with the respective Bar Councils. The respondent denies the
petitioners contention that Indian lawyers in the United States are not
permitted to practice law there or are subjected to unfair discrimination
in the matter of practice of law, thus precluding reciprocity with India. In
fact, many Indian lawyers practice law in the U.S. and the American Bar
Association Model Rule for the Licensing and Practice of Foreign Legal
Consultants provides that an Indian advocate of good standing of an
Indian Bar Council may be licensed to practice law in the U.S. without
giving any examination and he only needs to submit an application
certifying qualification to practice law in India, besides paying a modest
fee. The variant of such Model rule has also been emulated by various
States, which itself is testimony is that it is not discriminatory. According
to the respondent, several Indian advocates also practice law in the
U.S. by associating with U.S. licensed lawyers on specific matters and
these lawyers frequently travel to the U.S. on a temporary basis for
consultations on Indian legal issues.
The
Lawyers
The lawyer is
Jl~
or appear before any courts or tribunals anywhere in India and hence,
cannot be said to be engaged in the practice of law. According to her,
her client has consulted Indian law firms whenever it has been required
to provide legal services in India for its clients. More importantly, as on
date, the 9th respondent company has terminated services of all its
employees by way of redundancy and only the Director of the company
continues to act for the company as required, without compensation
from the company, with advice from professional legal and accounting
advisors in order to ensure that the firm meets their statutory obligations
in India.
36. Mr. R. Yashod Vardhan, learned senior counsel appearing on behalf
of the 23rd respondent submitted that his client is an international law
firm, as is the case with most of the other respondents herein, having
offices in London, Brussels, Hong Kong and Beijing. It has got clients
throughout the world with international business interests. However, the
scope of the 23rd respondents practice is such that it advises only on
matters of English, European Union and Hong Kong Law. According to
him, his client has working relationships with leading law firms in major
jurisdiction worldwide and it instructs appropriate local law firms to
provide local law advise wherever it is required. Learned senior counsel
submitted that no specific allegation has been made by the petitioner
against this respondent and hence, no relief could be granted as against
this respondent.
37. In reply, Mr. AR.L. Sundaresan, learned senior counsel appearing
for the writ petitioner submitted that the provision contained in Section
47(2) of the Advocates Act is subject to Section 47(1), in that it makes
no distinction between foreign law and Indian law. Section 29 enables
Similarly, the
dated
Bar Council of India to continue the dialogue and interaction with the
Government of India, represented by Ministry of Law and Justice and
also the Ministry of Trade and Commerce and with the Law Councils
and Law Societies of the foreign countries, i.e. the counterparts of the
It is further
resolved to authorize the Bar Council of India to take the final decision
in the matter in consultation with all the State Bar Councils in due
course of time and at the appropriate stage as to whether entry of
foreign lawyers and law firms could be permitted into the legal practice
in India in any form or manner and subject to any limitations and
restrictions imposed in the changed circumstances and as and when the
situation ripens and in the best interest of the legal profession of India
and that of the country and people.
offices
being
of the
which were foreign law firms practising the profession of law in UK/USA
and having branch offices in different parts of the world, had applied to
the RBI during the period 1993-1995 seeking permission
to open their
liaison offices in India. While granting such permission, the RBI made it
clear that the permission
Act,
construed
in any
validating
any violations,
regularizing,
contraventions
condoning
Exchange
should
not be
or in any
manner
29 of FERA,
1973, and assuming such permission was valid, whether these foreign
law firms could carryon
enrolled
as advocates
1961.
There,
legal assistance
to another
person by
in litigious
matters when he
matters
The case of
the petitioner therein was that the Advocates Act is a complete code for
practising
in non-litigious
matters
were
being
subjected to the provisions of the Act as well as the rules framed by the
Bar Council, whereas their foreign counterparts were neither being
subjected to the Act nor the rules framed by the Bar Council.
42. The Division Bench of the Bombay High Court formulated the
(ii)
In the affidavit in
reply, these foreign law firms have stated that they have opened the
liaison
offices
in
India
mainly
to
act
as
coordination
and
offices of the foreign law firms are engaged in providing various legal
services to their clients carrying on wide range of businesses all over
the world, the liaison activity carried on in India, namely, to act as a
coordination and communication channel would obviously be relating to
providing legal services to the clients. The respondent No. 12 has
further claimed in its affidavit in reply that their liaison activity inter alia
included providing "office support services for lawyers of those offices
working in India on India related matters" and also included drafting
documents,
reviewing
and
providing
comments
on
documents,
approval from RBI and RBI granted the approval in spite of the rejection
of FIPB. Though specific grievance to that effect is made in the petition,
the RBI has chosen not to deal with those grievances in its affidavit in
reply. Thus, in the present case, apparently, the stand taken by RBI &
FIPB are mutually contradictory.
45. In any event, the fundamental question to be considered herein is,
whether the foreign law firms namely respondent Nos. 12 to 14 by
opening liaison offices in India could carryon the practise in non litigious
matters without being enrolled as Advocates under the 1961 Act?
47. The argument of the foreign law firms is that Section 29 of the 1961
Act is declaratory in nature and the said section merely specifies the
persons who are entitled to practise the profession of law. According to
the respondent Nos. 12 to 14, the expression 'entitled to practise the
profession of law' in Section 29 of the 1961 Act does not specify the
field in which the profession of law could be practised. It is Section 33 of
the 1961 Act which provides that advocates alone are entitled to
practise in any Court or before any authority or person. Therefore,
according to respondent Nos. 12 to 14 the 1961 Act applies to persons
practising as advocates before any Court / authority and not to persons
practising in non litigious matters. The question, therefore, to be
considered is, whether the 1961 Act applies only to persons practising
in litigious matters, that is, practising before Court and other authorities?
44. As noticed above, the fact of the case before the Bombay High
Court were that the respondents which were foreign law firms practising
the profession of law in US/UK sought permission to open their liaison
office in India and render legal assistance to another person in all
50. According to the 36th respondent foreign law firm, their lawyers fly
in and fly out of India on need basis to advise its clients on international
transactions and other matters involving Indian laws and international
ventures, to which there is an Indian component.
51. We find force in the submission made by the learned counsel
appearing for the foreign law firms that if foreign law firms are not
allowed to take part in negotiations, for settling up documents and
conduct arbitrations in India, it will have a counter productive effect on
the aim of the Government to make India a hub of International
Arbitration. According to the learned counsel, many arbitrations with
Indian Judges and Lawyers as Arbitrators are held outside India, where
both foreign and Indian law firms advise their clients. If foreign law firms
are denied entry to deal with arbitrations in India, then India will lose
many of the arbitrations to foreign countries. It will be contrary to the
declared policy of the Government and against the national interest.
Some of the companies have been carrying on consultancy/support
services in the field of protection and management of intellectual,
business and industrial proprietary rights, carrying out market surveys
and market research and publication of reports, journals, etc. without
rendering any legal service, including advice in the form of opinion, but
they do not appear before any courts or tribunals anywhere in India.
Such activities cannot at all be considered as practising law in India. It
has not been controverted that in England, foreign lawyers are free to
advice on their own system of law or on English Law or any other
system of law without any nationality requirement or need to be qualified
in England.
52. Before enacting the Arbitration and Conciliation Act, 1996 the Law
Commission of India, several representative bodies of trade and
industry and experts
have proposed
Arbitration.
The Arbitration
and Conciliation
Act
is,
(ii)
(iii)
(iv)
54. From the above definition, it is manifestly clear that any arbitration
matter between the parties to the arbitration agreement shall be called
an international commercial arbitration if the matter relates to the
disputes, which mayor may not be contractual, but where at least one
of the parties habitually resides abroad
~I
Therefore,
if a party to an International
Commercial
International Arbitration
provides for
involved
importance,
especially
on
Foreign
Direct
Investment,
public
which
is
1~,t
he fulfils the conditions
years of age and (c) obtained a degree in Law. The proviso to Section
24(1 )(a) states that subject to the other provisions of the Act, a National
of any other country may be admitted as an Advocate on a State roll, if
a citizen of India, duly qualified is permitted to practice law in that other
country. In terms of Section 47 (1) of the Act, where any country
specified by the Central Government by notification prevents citizens of
India practicing the profession of Law or subjects them to unfair
discrimination in that country, no subject of any such country shall be
entitled to practice the profession of Law in India. In terms of SubSection (2) of Section 47, subject to the provision of Sub-Section (1),
the Bar Council of India may prescribe conditions, if any, subject to
which foreign qualifications in law obtained by persons other than
citizens of India shall be recognized for the purpose of admission as an
Advocate under the Act. Thus, Section 47 deals with reciprocity. As per
the statement of objects and reasons of the Advocates Act, it was a law
enacted to provide one class of legal practitioners, specifying the
academic and professional qualifications necessary for enrolling as a
practitioner of Indian Law, and only Indian citizens with a Law Degree
from a recognized Indian University could enrol as Advocates under the
Act. The exceptions are provided under the proviso to Section 24(1 )(a),
Section 24(1 )(c) (iv) and Section 47(2). In the light of the scheme of the
Act, if a lawyer from a foreign law firm visits India to advice his client on
matters relating to the law which is applicable to their country, for which
purpose he flies in and flies out of India, there could not be a bar for
such services rendered by such foreign law firm/foreign lawyer.
60. We are persuaded to observe so, since there may be several
transactions in which an Indian company or a person of Indian origin
may enter into transaction with a foreign company, and the laws
applicable to such transaction are the laws of the said foreign country.
There may be a necessity to seek legal advice on the manner in which
the foreign law would be applied to the said transaction, for which
purpose if a lawyer from a foreign law firm is permitted to fly into India
and fly out advising their client on the foreign law, it cannot be stated to
be prohibited. The corollary would be that such foreign law firm shall not
be entitled to do any form of practice of Indian Law either directly or
indirectly. The private respondents herein, namely the foreign law firms,
have accepted that there is express prohibition for a foreign lawyer or a
foreign law firm to practice Indian Law.
to the Advocates
Act. Therefore,
the
concern
of the
1~4
in and fly out basis, for the purpose of giving legal advise to their clients
in India regarding foreign law or their own system of law and on diverse
international legal issues.
(iii) Moreover, having regard to the aim and object of the International
Commercial Arbitration introduced in the Arbitration and Conciliation
Act, 1996, foreign lawyers cannot be debarred to come to India and
conduct arbitration proceedings in respect of disputes arising out of a
contract relating to international commercial arbitration.
(iv) The B.P.O. Companies providing wide range of customised and
integrated services and functions to its customers like word-processing,
secretarial support, transcription services, proof-reading services, travel
desk support services, etc. do not come within the purview of the
Advocates Act, 1961 or the Bar Council of India Rules. However, in the
event of any complaint made against these B.P.O. Companies violating
the provisions of the Act, the Bar Council of India may take appropriate
action against such erring companies.
64. With this conclusion, this writ petition stands disposed of. There
shall be no order as to costs.
Consequently,
II--r~
h ')
(Pr
the connected
A ,I\} N~\J R p- 2_
j.40
ITEM NO.25
SUP
COURT
REM
SECTION XII
NO.7
o F
E
C 0 U R T
RECORD OF PROCEEDINGS
I N D I A
(Civil)
Petitioner(s)
VERSUS
A.K. BALAJI & ORS.
Respondent(s)
Date: 04/07/2012
hearing today.
CORAM :
HON'BLE MR. JUSTICE R.M. LODHA
HON'BLE MR. JUSTICE ANIL R. DAVE
For Petitioner(s)
For Respondent(s)
R-14 & 33
Dr. Abhishek Manu Singhvi, Sr. Adv.
Mr. Manu Seshadri, Adv.
Mr. Arnit Bhandari, Adv. for
M/S. Dua Associates,Adv.
R-10,16,19,26,39
& 40
R-18
Ms. Poorva
UPON hearing
Following
counsel
Nanawati,
the Court
Adv.
made
the
o R D E R
Issue notice returnable in ten weeks.
Mis. Dua Associates waive service for common
respondent Nos. 14 and 33, Mr. E.C. Agrawala,
Advocate, waives service for common
respondent Nos.
10, 16, 19, 26, 39 and 40, and Mr. Sakya Singha
Chaudhari,
Advoca te , waives
service
for
common
respondent No. 18 in the special leave petitions.
Notice shall only go to the unrepresented
respondents.
Dasti, in addition to the ordinary process, is
permitted.
In the meanwhile, it is clarified that Reserve
Bank of India shall not grant any permission to the
foreign
law
firms
to
open
liaison offices in
India under Section 29 of the Foreign
Exchange
Regulation Act, 1973. It is also clarified that the
expression "to
practice
the profession of law"
under Section 29 of the Advocates Act, 1961
covers
the persons practicing Li,
tigious
matters
as
well
as non-litigious matters other than contemplated in
para 63 (ii) of the
impugned
order and, therefore,
to practice in non-litigious
matters in India the
foreign law firms, by whatever
name called or
described, shall be bound to follow the provisions
contained ln the Advocates Act, 1961.
(Rajesh Dham)
Court Master
(Renu Diwan)
Court Master
OF 2015
IN
OF 2015
...RESPONDENTS
MOST RESPECTFULLY SHOWETH:1. The Petitioner seeks leave to assail the impugned Judgment and final
order dated 16 December 2009 passed by the Hon'ble High Court of
Judicature at Bombay in Writ Petition (C) No. 1526 of 1995 by way of
a Special Leave Petition under Article 136 of the Constitution of India.
The Petitioner is aggrieved by the impugned order whereunder the
Hon'ble High Court has erroneously held that to practice the
profession of law in India, a foreign law firm has to fulfill the
qualification of being enrolled as advocates under the Advocates Act,
1961.
2. The Petitioner seeks permission of this Hon'ble Court to read and rely
upon the contents of the Special Leave Petition and that the same
are not repeated herein for sake of brevity.
i)
The Courts have not delved upon the requirements under the
Advocates Act and the BCI Rules for registration of lawyers based
upon the demarcation of the practice of the profession of law into
the practice of Indian law and the practice of foreign law.
ii)
The Courts have also not delved into the possibility of whether a
foreign law firm could have Indian qualified lawyers join the firm
and practice Indian law, whereas the foreign lawyers could
practice only foreign law.
iii)
iv)
v)
The Advocates Act and the BCI Rules do not regulate or prohibit
the profession of foreign law, which is governed by laws of each
foreign state and only apply to the practice of Indian law.
vi)
qualified lawyers to work with global lawyers being based out of India
and to encourage the working of foreign qualified lawyers and Indian
qualified lawyers from India, to give Indian law students and Indian
qualified lawyers an opportunity of working at international law firms
in India and to promote the setting up of a universal global standard
of regulating legal profession and the code of conduct binding
lawyers.
8. It is in light of the above-mentioned circumstances that the Petitioner
most respectfully pray: PRAYER
(b) pass such other and further order/s as this Hon'ble Court may
deem fit and proper in the facts and circumstances of the
present case.
AS IN
Filed by:-
VIKASH SINGH
Advocate for the Petitioner
New Delhi
OF 2015
IN
OF 2015
...PETITIONER
VERSUS
...RESPONDENTS
1. The Petitioner seeks leave to assail the impugned Judgment and final
order dated 16 December 2009 passed by the Hon'ble High Court of
Judicature at Bombay in Writ Petition (C) No. 1526 of 1995 by way of a
Special Leave Petition under Article 136 of the Constitution of India.
The Petitioner is aggrieved by the impugned order whereunder the
Hon'ble High Court has erroneously held that to practice the profession
of law in India, a foreign law firm has to fulfill the qualification of being
enrolled as advocates under the Advocates Act, 1961.
3.
a)
exempt the Petitioner from filing the certified copy of the impugned
Judgment and final order dated 16 December 2009 passed by the
Hon'ble High Court of Judicature at Bombay in Writ Petition (C) No.
1526 of 1995;
b)
pass such other/further order as this Hon'ble Court may deem fit
and proper in the facts and circumstances of the present case.
L6
OF 2015
IN
OF 2015
...PETITIONER
VERSUS
AN APPLICATION
...RESPONDENTS
To
Hon'ble the Chief Justice of India
and his companion judges of the
Supreme Court of India.
The humble application of the
above named Petitioner
MOST RESPECTFULLY SHOWETH:1. The Petitioner seeks leave to assail the impugned Judqrnent and final
order dated 16 December 2009 passed by the Hon'ble High Court of
Judicature at Bombay in Writ Petition (C) No. 1526 of 1995 by way of
a Special Leave Petition under Article 136 of the Constitution of India.
The Petitioner is aggrieved by the impugned order whereunder the
Hon'ble
High Court
has erroneously
held that
law firm
to
practice
the
2. The Petitioner seeks permission of this Hon'ble Court to read and rely
upon the contents of the Special Leave Petition and that the same
are not repeated herein for sake of brevity.
1~&
j.9~
J9(b) pass such other and further order/s as this Hon'ble Court may
deem fit and proper in the facts and circumstances of the
present case.
AS IN
Filed by:-
VIKASH SINGH
Advocate for the Petitioner
New Delhi
Dated: 16 --0 ~ - ?. 0 If"'
VIKASH SINGH
ADVOCATE-ON-RECORD
B-51 204, LGF, Safdarjung Enclave
New Delhi-110029, Ph No: 8826534801
To,
The Registrar,
Supreme Court of India,
New Delhi- 110001
25/3/2015