- (1.) 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 transactions, in any manner whatsoever within the territory of India.
(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 apart, the procedure for Indian Lawyers to practice in foreign countries is far more cumbersome and very costly, and there are also very many restrictions like qualifying tests, prior experience, work permits, etc., but no such procedures are contemplated in the Advocates Act, 1961 in respect of foreign lawyers who intend to practice law in India. The Act simply provides that a foreigner may be admitted as an Advocate, if Indian nationals are permitted to practice law in his/her country. 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 Visitor s 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 country s 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 authorities can exercise their disciplinary authority/control only over the advocates who are on the Rolls 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, chamber work, documentation, arbitration, mergers, take -overs, acquisitions, incorporations and so on and so forth. But, in spite of the restrictions, respondents 9 to 40 are carrying on their practice in utter disregard to the provisions of the Advocates Act and the relevant rules and regulations framed in this connection. Causing loss to the Exchequer : (f) Such foreign law firms did not get any permission either from the Government of India or from the Bar Council of India, from any State Bar Council, from the Tax Department or the Reserve Bank of India for 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. In this connection, it is stated that the writ petitioner, through Association of Indian Lawyers , in which he is also one of the members, sent a detailed representation on 18.01.2010 to official respondents 1 to 8, to take suitable action against respondents 9 to 40 herein. The writ petitioner further stated that since the said official respondents did not take any action, he was constrained to file the present writ petition seeking the prayer stated herein above. The first respondent Union of India filed four counter affidavits on 19.08.2010, 24.11.2010, 19.04.2011 and 17.11.2011. In one of the counter affidavits, it is stated that the Bar Council of India, which has been established under the Advocates Act, 1961, regulates the 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 the government to make India a hub of International Arbitration. In this connection, it is stated that 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 Singapore, Paris and London. It will be contrary to the declared policy of the government and against the national interest. In the counter affidavit filed on 19.04.2011, it is stated that a proposal to consider an amendment to Section 29 of the Advocates Act, 1961 permitting foreign law firms to practice law in India in non -litigious matters on a reciprocity basis with foreign 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.
(3.) 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 of 1995 by order dated 16.12.2009 in the matter of Lawyers Collective Vs. Bar Council of India). It is further stated that since against the said judgment of the Bombay High Court no appeal was preferred, it attained finality, and consequently, the present writ petition deserves to be dismissed. It is stated that as per the provisions contained in Sections 24 and 29 of the Advocates Act only persons who are citizens of India are eligible to be enrolled under Section 24 of the Act to practice the profession of law before the Indian Courts. However, the counter makes it clear that Bar Council of India has got the power under Section 47(2) read with Section 49(1)(e) to provide for relaxation of such a condition. The counter further makes it clear that the practice of foreign law within the territory of India would also be subject to the regulatory powers of the Bar Council of India. It is stated that in a Joint Consultative Conference of the Members of the Bar Council of India and the Chairmen, Vice -Chairmen, and Executive Committee Members of the State Bar Councils held at Kochi on 17th and 18th November, 2007 it was decided not to relax any of the statutory norms for practice of law in India by exercising the powers conferred to the Bar Council of India under Section 47(2) read with Section 49(1)(e) of the Advocates Act, 1961. Finally, it is stated that the provisions of the Advocates Act, 1961 would apply with equal force to both litigious and non -litigious practice of law, and only persons enrolled under Section 24 of the Act can engage in the same.;