I

:a_i

rN THE suPREMe CoURT oF rNDIA

crvrL

APPEI-LATE JU Rrsorcrro{v

SPECIAL LEAVE PETITION

;1

(Under Article 136 of the Constitution of India')

(CIVIL)
PETITION (Lrvr'L.
:AVE PETrrl(JN
SPECIAL LEAVE

I{o' L7L50-

L7Ls4/ 2OL2

Petitioner

Bar Council of India

VERSUS

Respondents

Counter Affilavit on behalf of Respondent No' 18

\,

Bolding
Jonathan Lugard Forrest BraYne' son of Richard
I

aged 57 YeaFS, with office at One BishoPs Square,

,,.FraYne,
affirm
L";iOon E1 6AD, United Kingdom do herebY solemnly
.

and sincerelY state as follows:

1.

I am a ,Paftner at Allen & overy LLP (A&o LLP) at the

matter
above address, I am familiar with the facts of this
--.-.''"'

andlamdulyauthorisedbyA&oLLPtofilethisaffidavit
'aPpears, tr make this
on its behalf. Save where otherwise
where
affidavit from matters within my own knowledge'
derived
the matters to which I depose are based on facts

:
I

,C
_4_

from other.sources, I believe them to be true. where tne ?

c-A
set
matters relate to legal aspects, the Same have been
out on the basis of legal advice by counsel'

2.

I have perused the contents of the Affidavlt filed in

support of the Special Leave Petition and deny the claims'
averments and contents of the same save and except to

the extent specifically admitted to in this

counter

affidavit.Any omission on the part of this Respondent to

deal with any specific contention or averment of the
Petitioner should not be construed as an admission of the
sa

me bY this ResPondent.

PRELIMINARY
3.

SU

BMISSIONS

Rbspondent No. 1B

is an international legai practice

comprising A&o LLP and its affiliated undertakings' Each

global
undertaking is a selparate and distinct practice' The

organization, Allen & overy,

is not a legal entity or a

partnership and does not itself provide (directly or

indirectly) any legal or other client services' These
or
services are provided solely by A&o LLP and/ or one
more of its affiliated und.ertakings - which together

comprise the global organization, Allen & overy.

4.

This ResPondent has

offices

in 27

(twentY-seven )

in India
countries; however, neither does it have an office
out
nor does it Practice Indian law' The same is borne

o@ from the wbbsite of the Respondent which states

unequivocally thus: " Regulation prohibits us from

practising Indian law ourselves or from having our own

office in India". nt the same time,

l

' that
Respondent
thut

it is submitted by this

who ar'e based in India

it has clients
cl

and

atso clients who do business with and irl-lnOia. To be able

to serve these clients, the partners and associates of this

Respondent frorn across

its international offices provide

the client with specialist international legal knowledge

lr

'<:;,..

and expertise. Since, as stated above, this Respondent

is

not qualified to, and does not, Qrdctice Indian law or have

an office in India, in matters where some aspects of

Indian law are involved, this Respondent works with
Indian law firms which comprise of lawyers qualified to
practice Indian law and have offices

working together on

in India. When

particular client's affairs, the

qualified Indian lawyer provides the Indian leg,al advice

1':'

'

't_':,,

and expertise/ wherever required, while this Respondent

provides the foreign/international legal advice

and

expertise. This is a key way in which this Respondent

Lii

has been able to help its clients obtain law service whilst

being scrupulous in ensuring that the service complies

with the spirit and letter of Indian

5.

In the course of this

laW.

Respondent's work

for

clients

described above, as is customary throughout the world,

In

the clients

:n

various occasions require this Respondent's

to India to meet the clienta

and/or its counterparties or to discuss or negotiate a
partners and staff to travel

t-<

transaction etc.

In this situation, this

Respondent's

person will typically fly to India for a day or a few days,

staying in hotels and working out of the client's or its

counterparties'or Indi'an lawyers'offices on issues

in

such transactions related to foreign, law.

6.

Lawyers from this Respondent have atso visited India to

meet with clients who are involved in international

commercial arbitration proceedings and

with

other-

involved in those proceedings. This will happen if a client,

whether Indian or

international, required this

Respondent's lawyers to visit India from their home office

so that the client could consult this Respondent in relation

to the proceedings on issues other than Indjan law or

that the lawyer could attend and participate jn

so

those

proceedings or in meetings relating to tf'1em.

L

7.

The Respondent No.

herein, i.e.

A.

K. Bataji fiied a writ

petition, W.P.(C) No. 56L4/2010, under Article 226 of the

Constitution

of India before the Hon'ble High Court o[

Judicature at Madras (hereinafter "Hon'ble Madras High

Court") wherein he contended as follows:

"L

ffi

tIlLeI t tctLtut tat

vaflous

7,

Firms,

havin

th

eir

Ro

utes outside

LCt

vY

th e

Territory of India, have opened up their offices

in Indiq or in neighbouring countrie:s and'are

operating the tegal practice withirl India, such
I

Mergers, Take-over, Acquisitions,

Amalgamations etc., and are tnto various

as

commercial transactions, arbitration so on and

so forth.

the advocates from various foreign

law firms are often visiting India and
conducting seminars in various parts of our

Moreover,

country. They are entering in to India through

visitor's visa but the actual intention of their

visit is to indirectty market and earn money

out

of clients from India by waY of seminars.

Moreover, they are also conducting arbitration

in Indian Hotels and ior which the pay:ments

are made to their office tocated outside India.

This

is

complete violation

of our country's

income Tax laws, Immigration laws and loss of

revenue to our country, simitar to this there

are

numerous foreign

law fii'ms that

draining our Indian tegat market

are

12. I submit that some of the international

ffi
e

law firms has theil office in India and practices

Indian law by catting themselves as LPO, They

are running a law firm in India obtaining anY

prior permission , from Indian government and

a

7-

the authorities. Here they are taking

protection under the guise of LPO. This is
complete violation of our Country's Income
Tax laws, Immigration laws, RBI rules and
regulations, Bar C.ouncil" (sic)

The Petitioner prayed for the foltowing relief before the

B.

Hon'ble Madras High Court:

For the reasons stated a bove,

it is h um bty prayed

that this Hon'ble Court may be pleased to issue

ft.,,'

,;..,,,

Writ of Mandamus or anY other appropriate writ

I

order or direction in the nature of Writ of Mandamus

directing the Respondents to take appropriate action

against the Respondents 9 to 41 (Respondents 10

to 42 in the present petition) or any other Foreign

law firm or foreign ItawYers who are iltegallY
practicing the profession of-taw in India and ptrohibit

them from having any tegat practice either on the

l'}
r-_

a?

,,1.,.

Commercial transactions

in any manner within the

territory of India, and pass such further or other

orders,as this Hon'ble court may deem'fit and

proper in the facts and circumstqnces of the case

and thus render iustice."

This Respondent submitted before the Hon'ble Madras

9.

High Court

in its counter affidavit to the above writ

petition, as it submits here, that in all the cases described

in paragraphs 4, 5 and 6 above, the activities of this

Respondent do not amount to "practising the profession
of law" aS envisaged under the Advocates Act, 1961
(hereinafter referred to as the "Act"). It is stated that the
lawyers working with this Respondent practice foreign law

after being duly qualified to do so in terms of the

laws

and rules p[escribed in their respective jurisdictions of

qualification. This Respondent does not have an office in
,'.

India and it does not practice the profession of law in

India. Moreover, this Respondent submits that the Act

and the rules framed thereunder relate only to the

practice of Indian taw and do not concern themselves
with the practice of non-Indian law. Therefore, there is no
legal requirement for tawyers who do not practice Indian
law to enrol themselves as 'advocates' under the Act'

10,
th
(L.i

The expression "law" nas not Deen oerlneq ltl LIle ALL.
E
has
India
of
Constitution
the
However, Article 13 of
provided an inclusive definition to include any ordinance/

order, bye-lawS, rutes, regulations, notification, custom

or usage having in the territory of India the force of law,

and including laws made by a legislature or other

competent authority in the territory of India before the
commencement of the Constitution of India. Further, the
Hon'ble Supreme Qourt while construing the scope of the
fi-

expression "law" has in a catena of judgments held that

the expression law refers to State-made iaws that

are

validly enacted by the legislature having competence to

enact Such laws under the Constitution, and

ruleS,

regulations, orders and bye-laws passed by any authority

thereunder. Further, Schedule VII of the Constitution

enlists the various subjects on which the Pariiament or
l

State Legislatures are empowered to enact

laws'

\\
Therefore, any reference to the expression praitice or
profession

of law" in the Act can only refer to

laws

enacted and implemented in the territory of India by the

competent legislative / executive or judicial body

authorized to enact or implement such law' The same"
cannot be construed to cover laws /'statutes enacted or
implemented in territories outside India, This clearly does
not appear to be the intention of the Act'

FUfther, thefe iS nO restfictlgn Unqer ally rovv

14.

Lr

rqL

prevents or prohibits lawyers frorr practising or advising

in relation to non-Indian law on a temporary basis within

the territory of India.

It is submitted tfrlt

foreign lawyers

who do not practice Indian law do not need to be enrolled

1

detrimental
as advocates.Any such requirement would be
of Indian clients who would be precluded

to the interests

from seeking and receiving competent advice fr:om

qualified foreign lawyers in respect of laws of other
jurisdictions since it would not be possible for foreign

:L

to enrol
lawyers travelling to India for a day or few days
themselves as advocates in India. such

requirement

will also be contrary to the intention of the Act

since

Someoftheseforeignlawyersmaynotbequalifiedin
Indian Iaw to be recognized as advocates in India

In fact, if

L2.

':i

'

then
tt'1e Petitioner's arguments are accepted'

to advise
the only set of advocates who would be eligible
enrolled
on foreign law would be India qualified lawyers

under the Act. This would result in an anomalous

trained
situation whereby Indian lawyers,. educated and

intheprinciplesoflndianlaw,wouldbepermittedto.
practice foreign Iaw, whereas their foreign counterparts
foreig n law
who are actua{ly qualified to practice such

It is submitted
interpretation would result in the

would be barred from doing so in India'

that the Petitioner's

ffits

Undesifable SCenafiO WhefeOy qUallrleq

who have undergone the rigor of

1{JI

Ergr-r

rc' vv v

vr J

lo

legal education and

)

in order to
tra.ining in their home countri es/iurisdictions

becomeeligibletopracticethelawofthat
rendering
countryfiurisdiction would be barred from
but their Indian
advice with respect to such law in India;
be allowed to render advice with

counterparts would

to such foreign law merely on account of being

degrees that
enrolled under the Act on the basis of law

respect

It is respectfully submitted
would
that the above scenario, if allowed to prevail,
of Indian clients.
cause immense harm to the interests

train them in Indian law only'

of their dealings
seeking advice on foreign law component

andtransactionsinlndia.Further,anunhealthy
categorizationyvilltakeplacebetweenthoselndian
n j u risdictions io
clients who are able to fly to foreig
on foreign la\'1 and those Indian
advice
legal
obtain
uulidly
/, ,,
,-', clients who are unable/unwilling to oo so and seek to rely

i,-

in and fly out to

on the ability of foreign lawyers to fiy
It is submitted that
render advice to them on foreign law'

to deprive the
the Petitioner ought,not to be permitted
practice law in a field that
lawyers of this Respondent to
theyareotherwi5equalifiedandcompetenttocarryon.

aforementioned writ petition, the Hon'ble Mad ras

the
In
1,},
(1"''
Ir
consideration of ail the facts
High'Court, after a judicious cor

and averments on record, held as follouis:

on lhe issue of foreign lawyers flying in and flying

j

out of India to advise clients on foreign law i

,,5B.TheSupremeCourtinarecentdecision

}I

in

Vodafone International Holdings

B'V'

vs'

Union of India and another, SLP(C) No,26529

of 2070, dated 20.01.2072, observed that

every strategic foreign direct investment
coming to India, as an investment destination

should be seen in a hotistic manner'

The

Supreme Court observed that the question

involved in the said case was of considerable
public importance, especiatty on Foreign Direct

Investment, which is indispensable for

ta'

growingeconomYtikelndia'Therefore'we

shoutdnotlosesiteofthefactthatinthe
overall economic growth

of the

country,

International'commercial Arbitration would

ptay a vitat part' The learned counsel

appearing.fgr the foreign taw firms have taken

adefinitestandthattheciientswhomthey
represent do not have offices in India' they do

ffi
\&#

---

not advise their foreign clients on matters

concerning Indian Law, but they fty in and fty

l?/

out of India, only to advise and hand-hold

their clients on foreign laws. The foreign law
firmits, who are the private Respondents in this
writ petition, hdve accepted the legal position

that the term practice would include both

.

titigation as wett as non-titigation work, which

is better known as chamber

Therefore, rendering acvice to

practice.

a client would

also be encompassed in the term practice'

59.Asnoticedabove,Section2(a)ofthe
Advocates Act defines 'Advocate' to mea n a n

advocate entered in anY roll under the

provisionsoftheAct,IntermsofSection
17(1) of the Act, everY State Bar Council shall
prepare and maintain a rolt of Advocates' in
wh

ich

sha

tt be entered the

na

mes

a nd

addresses of (a) atl persons who were entered

as an Advocate on the roll of anY High Court

under the Indian Bar Council Act,7926'

immediatety before the appointed date and (b)

all other persons admitted to be Advocates on

the rolt of the state Bar council under the Act

on or after the appointed date' In terms of

&i
\6;,r
--G\

of the Act, subject to the

t3
provisions of the Act and the Rules made
Section 24(1)

thereunder, a person shall be qublified to be

admitted as an advocate on a state rolt
b

if he

fulfils the conditions (a) a citizen of India, (b)

has completed 21 years of age and (c)

obtained

a degree in Law. The proviso

Section 24( 1)(a) states

that subject to

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,

duty

in that
other country. In.terms of Section 47 (1) of
qualified is permitted to practice law

the Act, where any country specified by the

Central Government

by .

notification prevents

citizens of India practising 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

In terms of Sub-Section (2) of

Section 47, subject to the provision of SubLaw in India,

Section (1), the Bar Council of India may

prescribe .conditions,

if a ny, subject to which

foreign qualifications in law obtained by

persons other than citizens

of tndia shatt

be

1iFh

{;'

tl

recognized for the purpase of admission as an

Advocate under the Act. Thus, Section 47

deals with reciprocity. As per the statement of

objects a nd 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

recognized Indian University could, enrol as

Advocates under

the Act, The exceptions

re

roviso to Section
24(1)(a), fection 2a(1)(c) (iv) and-section

provided u nder the

47(2). r
advice his client on matters relating tQ the law

purpose he'flies in and flies out of

India there

could not be-a bar for such services rendered

by such foreign law firm 'eign lawyer.

(emphasis supplied)

60.

We are persuaded

there maY

-be

to obse.rve so, since

several transactions in which an

Indian campany or a person of Indian origin

may enter into transaction with a foreign

tk

@
-a

ny, a nd the lqws a ppticalbb tu such

ls
transaction are the laws of the said foreign
country. There may be a necessit)t to seek
com pa

transaction, for which purpose if a lawver from

a fQreign law firm is permitted to fly into India

and ft'r' out advising their ctient on the foreign

it cannot be stated to be prohibitee!-' The

corollary would be that such foreign law firm

taw,
.;.

shatt not be entitted to do a ny form of practice

of Indibn Law either directly or indirectty. The

private Respondents herein, namely

the

foreign law firms, have bccepted that there is

a foreign lawyer or a
foreign law firm to practice Indian Law, It is
express prohibition for

::-

!ii'

a,,a

pointed out that if an interpretation is given to

prohibit practice of foreign law by a foreign law

firms within' India, it would result in

manifestty absurd situation wherein only

Indian citizens with Indian Law degree 'who are
enrolled as an advocate under the Advocates
'when the iact
law,
foreign
pra.ctice
Act could .

remains that foreign laws are not taught at

g

rad

uate level in India n Law schools, except

r.n

ComO3rative Law D99ree Courses

..-+G

at

'n"

Master's level. " (emphasis supplied)

r,

(ii) on the issue of foreign lawyers participating

arbitration

in. India:

"57. Institutional' Arbitration has been defined

to be an arbitration conducted by an arbitral
institution in accorda nce with the rules of the
institution. The Indian Councit of Arbitration is
,.-:\

one such body,

It is reported that in severa I

cases of International Commercial Arbitration,

foreign contracting party prefers to arbitrate in

India a nd severa I reasons have been stated to

India as the seat of , arbitration.

Therefore, when there is tiberalization of
choose

economic policies, throwing the doors open to

foreign investments,

it

cannot be denied that

disputes and.differences are bound

to arise in

such Internatio,nat contracts' When one of the

contracting party is a foreign entity and there
is a binding arbitration agreement between the

parties and India

arbitratiol,-

is chosen as the seat of

it is but natural that the foreign

contracting partY woutd seek the assistance of

the:ir own soticitors or lawyers to advice them

in

ffi\

on the imPact of the laws of their country on

t?

.-l}r

the sa id contract, a nd

theY m?Y accom pa ny

their clients to visit India for the purpose of

foreign,

law in India in the course of

It
cannot be denied that we have

cornprehensive and progressive tegal frame

work to supp.ort International Arbitration and

the1996Act,providesformaximumjudicial

support of

arbitration and

minimal

intervention. That apart, it is not in all caset, u

.-@.

foreign company conducting an Internationat

Commercial Arbitration

lg

in India would solicit

the assistanc.e of their foreign lawyers. The

legat expertise'availabte in India is of
International standard and such foreign
companies would not hesitate to avail the
services of Indian lawyers. Therefore, the need

tomakelndiaasapreferredseatfor
International commercial Arbitration would

benefit the economY of

th

Co

Lt

ntry,,,

(emphasis suPPlied).
L4.

Finally, the Hon'ble Madras High Court has summed

up its views in the following words:

,,48,(i)

Foreign law firms

or foreign lawyers cannot

practice the profession of law in India either on the

litigation or non-titigation side, unless they fulfil the

requirement of the Advocates Act, 1961 and the Bar
Council of India Rules'
(

ii)

However,thereisnobareitherintheActorthe
lawyers to"
Rules for the foreign law firms or foreign
visit India, for a temporary period o, a fty in and fty
outbasis/forthepurposeofgivinglegaladviseto
their cl,ients in India regarding foreign law or their

own system of law and on diverse international legal

ffi

-'=^-

issues.

(iii)

Moreover, having regard

the Internationa

h
J

,q
to the aim and object of

I Commercia I Arbitratian introduced

in the Arbitration and Conciliation Act, 7996, foreign

lawyers cannot be debarred to come to India and

conduct arbitration proceedings in respect of

disputes arising out of a contract relating

to

internationa I com mercial a rbitration.

(iv) The B'r P.O. Companies providing wide ra nge of

custoflisea 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."

15.

By virtue of the present Special Leave Petition before this

Hon'ble Court, - the Petitioner herein has challenged the

judgment and prder dated 2L February, 2Ot2 of the

Hon'ble Madras High Court (hereinafter the "Impugned

qft6,

Judgment") on the ground, intern alia, that it does not

lay down the corre.ct position in

16.

70

law

It is respectfutly submitted that the present petition is

based on an erroneous, misconceived and incomplete
understanding of the law, including the ruling in the
Impugned Judgment.

L7,

It is submitted that the scope of the Act extends to

governing the practice of Indian law in the territory of

India by duly qLlalified lawyers. The Act does not extend

to the practice of non-Indian or foreign law in

the

territory of India. While the Act as suqh does not make

any distinction, an interpretation to the contrary would
militate against the purpose and scheme of the Act,

as

detailed in the subsequent paragraphs.

18.
\,

A reading of Section,2g and Section 33 of the Act shows

that the Act recog nizes only one class of personS,

na

mely

advocates, as being entitled to'practice the profession of

law'. Further, an 'advocate' by definition is one whose

me has been entered in a ny State roll ma inta ined

under the Act. As per Section 30 of the Act, this'right to
na

practice' extends throughout the territories

of India to

which the Act extends:

(i)

In all cpurts including the Supreme Court of India;

(ii)

-@

Before any tribunal or person legally authorized 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 practice.

19.

3,4,6 and 7 of the Act

indicates that the Petitioner herein is the overarching
Further, a reading of Sections

authority for the supervision and regulation of the legal

pr.ofession in India. Additionalty, there are Bar Councils in

each State (State Bar Councils) which, dffiong other

roles, are required to prepare and maintain a roll of
advocates for their respective States. The Petitioner is

standards-setting body exercising powers

in relation to

supervision and control over standards of legal education

to be observed by U niversities, laying down req u isite

qualifications for law courses etc. Further, the Petitioner

,;,, is empowered to recog nize qualifications in law issued by

foreign Universities for the purpose of enrolment as an
advocate under the Act.

20. It is submitted that Section 24 of the Act lays down the

requirements for persons to be admitted as advocates on

a State roll. The Act generally prohiOits foreign nationals

from practising law in India. However, foreign nqtionals

having foreign qualifications may be admitted as

i

'advocates'on the State rolf5 and practice law in India if

the

conditions prescribed under proviso

to

&u

Section

24(L)(a), Section 24(\)(c)(iv), Section 47 and Section

49(e) are satisfied
k
d

21.

Section 24(t)(a) of the Act restricts the enrolment as an

advocate in the State Roll to persons who are citizens of

India. The proviso to S.24(1)(a) allows a foreign national

from another country admitted as an advocate on a State

:-: roll, if citizens of India, duly qualified I are permitted to

practice law in that other country

Further, Section 24(L)(c)(iv) provides -that a degree

in

law from a University outsidq India can.be recognized by

the Petitioner for the purposes of allowing a

foreign

national to be enrolled as an advocate in the State Roll.

Section 47 provides that a subject of any foreig n cou ntry

which discriminates against the citizen of India in the

matter of legal practice shall not be entitled to practice in

India. The Central Government may make a Gazette

notification to this effect.
Section 47 further provides that Petitioner may prescribe

the conditions, if dtry. subject.to which

foreign

qualifications iri iaw obtained by foreign nationals shalt be

recognized for the purpose of admission as an advocate

in the State Roll. Section 49(e) provides the rule-making

power to

th

is effect. Nota bly , the Petitioner has not

e3

prescribed any conditions or further qualifications for the

en

rolment of such

q ua

22.

foreig

nationa

ls with

foreig

lifications.

it is respectfutly submitted that the provisions of

the Act, as discussed above, reveal that the Act is
concerned with two situations
of Indian
.enrolment
Thus,

citizens having Indian qualification and enrolment of

foreig

n citizens

havi

ng

foreig

q ua

ifications.

The

provisions of the Act have empowered the Petitioner to

play a supervisory and regulatory role in the field of legal

of Universities as well as in
prescribing qualifications and eligibility conditions for

education and recognition

advocates to practice Indian law. This cannot

be

extended in any *.unner to regulate the fly-in and fly-out

practice of foreign lawyers in India on a temporary basis
--t* -

for advising clients on foreign laws.

It is respectfully further submitted that the lawyers of this

Respondent do not practice the profession of law in India

as envisaged under the Act and rules framed thereunder.

Practising

a profession denotes an etement of continuity'

or permanency and involves establishing oneself as

rendering professional services on a primary and regular
basis. The Act applies within

the terrifory of India and

I

ffi

thus the practice of the profession of law governed bv the

.<--\-_

Act refers to those professional activities of advocar"=Bk

that take place within such territory on a continuous or

permanent basis.

qualified foreign lawyers in meetings with clients and/or

!l

cou nterpa

It is submitted that participation by

rties, in

iscussion a nd negotiatio n of

transactions and in seminarS, conferences and arbitration

in India on a tem porary, short and fleeting basis cannot

be said to constitute practising the profession of law

in

India as it lacks the element of continuity or permanency.

I

23.

The Act and the rules thereunder prescribe various

conditions for the enrolment of qualified foreign citizens

for the practice of Indian law in India and are clearly

intended to regulate the practice of Indian law by them in

India. Thus, it is submitted that the Act and

rules

thereunder govern the practice of Indian law by qualified

Indian citizens as well as qualified foreign citizens and are
t"

in no way concerned with the practice of foreign law

by

such qualified foreign citizens in the territory of India.

It

is submitted that the discernible rationale for the Act to

govern the practice of Indian law by qualifie_d foreign'

citizens is to ensure that they have the necessary

expertise and understanding of law as their Indian
counterparts in practising the profession of lar'v in India.

To this end, the Act provides for prescribing of conditions

inctuding additional qualifications which the qualified

foreign lawyers must meet in order to be permitted to
practice Indian law in India. The power

to regulate the

practice of Indian laws cannot be extended to similarly

h-

I/

regulate the practice of foreign law by qualified foreign

Iawyers in India on a temporary basis.
24.

The Respondent respectfully submits that the Act being

r'

enacted under Entry 77 and 78

of the List I of

the

Seventh Schedule to the Constitution is intended to

govern the practice before the Supreme Coutt and High

Court and matters in relation thereto. Having regard to

the fact that the Indian courts deal with the Iaws of India,

the scope of the Act.would extend to the practice of

Indian law. Even otherwise, the Petitioner is not qualified

to grant recognition to foreign lawyers in relation to the

,.
1,,-

"

practice of foreign law, and the same will be outside the

jurisdiction of Indian l'aws.

25.

It

is submitted that the Petitioner's misgivings regarding

lack of supervisory and disciplinary control over foreign

I

lawyers who fly into India on a temporary basis to render

to foreign law and participate in

is unfounded and misconceived. it is statecj

advice with respect

arbitrations,

that practice of foreign law by qualified foreiEn lawyers

?,{

dh
'4+'"t

wou ld,

at . a ll times, ' be governed

by the

reg

rurorY*'

authority validly constituted in the concerned respective

jurisdiction to regulate and supervise the practice of such
I

I
t

law. The Petitioner constituted under the Act, is neither

authorized nor h'as the expertise to determine"the

qualifications required

to practice foreign law or

to

regulate the practice of such law. Any such effort on the

part of the Petitioner would in fact have the effect of

violating the right of a foreign lawyer to,Oractice laws that

he has been duly

autho

rized to lpractice by the

appropriate authority of the country where such laws are

in force. The Petitioner herein, cannot, and it is

submitted, should not be permitted to exercise
jurisdiction over qualified foreign lawyers advising

on

foreign law in India on a tempo rarY basis as it would

result in a dual control of such lawyers, who would

be

bound by different sets of rules regulations, which may

not always be in consonance with each other.
26.

It is submitted that the Petitioner's contentions are

unmindful

of the prevalent practice whereby qualified

Indian lawyers enrolled under the Act fly in and fly out

of.

foreign countries to render advice and consult on Indian

law issues without any requirement of meeting additionai

qualifications under the laws of those foreign

jurisdictions.

t
n

27. The Respondent respectfully

_ffi

i
i
I
tf
F

,
??

submits that a Constitutional

Bench of this Hon'ble Court has, in the judgment in O,M.-

Mohindroo v. Bar Council of Dethi & Ors. (AIR 1968 SC

t
I

,,.

BBB), held

that the Act is a piece of legislation

deals only with persons entltled

to

which

practice before.the

Supreme Court and the High Courts. According

to

the

Hon'ble Supreme Court, the Act, being enacted under

Entry 77 and 78 of the List

I of the Seventh Schedule to

the Constitufion, is intended tq govern the practice before

t,l'

the Supreme Court and High Court and matters in

:

relation thereto. It is

respectfu

Ily

su bm

itted

that

inasmuch as the Hon'ble Court has held that the Act has

been enacted under Entry 77 anb 78 of the LIst

cannot be said

to apply to

persons practising

in

l,

it

non-

litigious matters. Further, in view of the Hon'ble Supreme

Court rejecting the argument that the Act was

composite legislation partly falling under Entries 77 and

78 of List I and partly under Entry 26 of List III, it

is

further submitted that untess a legislation is enacted to

regulate the persons practising in non-litigious matters by

invoking Entry 26 in List

III to the Seventh

Schedule to

the Constitution which deals with legal, medical and other'

profession,

it cannot be said that the persons practising

in non-litigious matters are governed by the

under the Act.

provisions

ffi

cit .:t

j
i

The ruling

i.n

Mohindroo case (supra) of this Ho!'ble Court

has followed in various subsequent iudgments such

The Bar Council of Uttar Pradesh

urT*

v. State of U.P. & Anr.

t(1g73)

SCC 2611; Bar Councit

of India v. Board of

Management Dayanand Cottege of La* urA Ors [AIR 2007

SC 1342J and

In Re Lily Isabel Thomas IAIR 1964 SC

BssJ.

That the Act governs practice before the

Su

prerne

Cou

rt

and various High Courts is further aPparent from the

i

provisions of Section 34 of the Act which empower the

High Courts

to make rules governing the practice

before

them as well as the courts subordinate ther eto. Further,

the Act contains s.pecific penal provisions under Section

45 for any persons found illegally practising law in Courts

or before any authority. Even the generic penal provisions

for misconduct under Section 35 prescribe suspension of

the guilty advocate from practice as one of the

punishments. To this, the Act further clarifies in subclause (a) of Section 35 that an advocate suspended from

practice would be debarred from practising law in any

Court or before any authority or person in India.

Thus,

it is submitted that insofar as'the lawyers of this

Respondent

do not practice in the Supreme

Court or the

High Courts or aS a matter of fact, before any other court

I i'*
f,

r,

or authority or in bny matter in relation thereto, they

Oo

&1

not come within the purview of the Act and are not
required to get enrolled under the Act.

In fact, the Hon'ble Supreme Court has in the case of

L.M. Mahurkar v. Bar Councit of Maharashtra [(1996) 9
SCC 1g2J held that the prohibition on the practice

of law

by lawyers not enrolled under the Act, does not disentitle

other persons not qualified as lawyers to appear

and

practice specific laws before authorities constituted under

such statutes. The relevant portion of the iudgment

is

extracted below:

"77. The requirements of

Rule 66 go

to show that sales

tax practitioner, who has not got a degree in law or is not

a quatified charte,red .or cost accounta nt, witt have to

acquire Some knowledge of accountancy. Even Section

2BB of the Income Tax Act and the Rules

t.::1:..

fra med

thereunder, tays down that an authorised representative

who

is

not

a tegat .practitioner entitted to ptractice in

anY'

civit court in India or a Chartered Accountant or a person

quatified to be an auditor of a company maY be allowed

to appear befo're an income tax authority, if he has'

of the accountancy examin,ations recognised
by the Centrat Board of Revenue oi has acquired a
passed any

degree in commerce from a recognised l'Jniversity' These

how that apart from lawyers and chartereo o,

&

ri.nj/

cost accoLt nta nts, other persans a re a ttowed to practice in

3o

the sa/es Tax Department as sales tax practitioner

provided they have acquired some knowledge of
aicountancy.' They wilt have to pass one of the many
recognised accountancy courses

for this purpose'

This

goes to show that the sa les tax practiticner does not

carry on the profession of taw when he appears before a
Sales Tax Officer. His practice is more in the nature of
t.:

that of an accountant. Therefore,

*" url unable to uphotd

the contention that merely because t?e appellant was

altowed to practice as a sales tax practitioner, he is
entitted to be enrolled as an advocate by virtue of the
provisions

of

clause

(aa) of sub-section (3) af Section 24

of the Act.

12. It may also be pointed out that the construction

a,

'r:'''
.^

must
suggested by the appettant witt lead to anomaly and
one
be avoided. After passing of the Advocates Act, only
profession of
class of persans is entitled to practice the

law,namely,advocates(section29).Ifthephrase
,,practice the, profession of law" is equated to appearance.

before the sates tax authority,. in that event, a chartered

or an
accountant Qr a- cost accountant or even a relative

to appeer
emptoyee of an assessee witt not be entitled
before

saleS

tax authority after the Advocates Act came

t
r

;ffi,

t9t"'j'?

'

into force. Uot only that, if the contention of the aonellant

3t
is accepted, after the appointed date the sales tax

,
a

practitioner who does not have a degree in law witt not be

entitled to be enrolled as an advocate, will not be able to

practice the profession of taw and consequently witt not

t!

be abte to aPpear before any sales tax authority ...."

PARAGRAPH WISE REPLY TO THE PETTTION

The questions of law raised by the Petitioner are devoid of any

rreFit in view of the submissions made herein above.

28.

The contents of Ground

I are deniecj and disputed. The

Petitioner has alleged that the following two findings of

the Hon'ble Madras High Court in the impugned judgment
)

are contradictory to each other:

,,48.

(i)

Foreign law firms

or foreign lawyers cannot

practice the profession of law in India either on the

I

:i\

titigation or non-titigation side, unless they futfit the

. LtA )..^^^L;-a
A.
requirement of the- Advocates Act, 1961 and the Bar'

Council of India Rules.

(ii) However, there is no bar either in the Act or

the Rutes for the foreign la.w firms or foreign
lawyers to lrisit India for a temporary period on a fly

in and fly out basis, far the purpose of giving legal

I

ad'vise to their clients in India regarding foreign law

or th.eir own sYstem o f law and on

F
T

Jffi
i-\..-

diverse

international legal issLtes."

"{

3v

It is respectfully submitted that the contention of the

Petitioner is erroneous and misconceived. The above
findings are not contradictory but have to be construed
i

w
rlq

harmoniously to appreciate their true import'

It is submitted that while coming to the conclusion

"

that

Foreign law firms or foreign tawyers cprnot practice the

I

profession of taw in lndia......", the Hon'ble Madras High

Court was referring to the practice of Indian law in India

and was not alluding to the practice of foreign law

in

India by qualified foreign lawyers for a temporary basis'

The practice of foreign lawyers to fly in and fly out of

India on a temporary basis to render legal advice to

clients situated within India on aspects pertaining to
foreign law and/or internationat law does not amount to
"practising the profession of law" under section 24 of the

Act. The Hon'ble Madras High court has clarified that

foreign lawyers are not precluded under the Act from
advising on foreign law in India on a fly in and fly out
basis.

Further,

it is submitted that pru.tiring the profession of

law connotes an element of cont!nuity or permanency and

involves establishing oneself as rendering professional

de

legal services on

a primary and regular basis, The Act

33

applies within the territory of India and thus the practice

of the profession of law governed by the Act refers to

those professional activities of advocates that take place
within such territory on a continuous or permanent baSis.

ry

It is submitted that participation by qualified foreign

lawyers in meetings with clients a nC/or counterpart!es, in
d

iscussion a nd negotiation of

tra

nsactions a nd

in

in India on a
temporary, short and fleeting basis cannot be said
constitute practising the profession of law in India. Fcr
Seminars, conferences and arbitration

this purpose,

SUch

foreign lawyers are not required to be

enrolled under the.Act. Thus, it is submitted that there

is

no contradiction in the findings of the Hon'ble Madras

H ig

29.

Cou

rt.

The contents of Ground

II and III are denied as being

erroneous and misconceived. The Hon'ble Madras High'

':l

Court has, in the Impugned judgment, specifically dealt

with the judgment of the Hon'ble High Court of Judicaure

at Bombay (herdinafter referred to as "Hon'ble Bombay

High Court") in Writ Petition (Civil) L526/ 1995,.

[reported in 2010 (112) BomLR 32] and proceeded to
distinguish the.specific questions of law that arose before
each Court.

{-

&

i'

vv'v dispute before

t"- core
that the
r., rur
submitted
It is
rL
.,

Bombay High court \{/as with respect

granted by Reserve Bank

the

to the

Hon'ble
3ef,
permission

to cettaln foreign law firms to

open liaison offices in India under the Foreign Exchange

Regulation Act, Lg73. After examining

activities

of

th,ese liaison offices,

the nature

of

the Hon'ble court

concluded that these were not in the nature of industrial,

and trading activities bL{t related'to the

commercial

profession of law which the foreign - law firms

i

were

.....,engagedin.SincetheseforeignfirmsWereengagedin
;ious activities, the Hon'ble court examined
whether the Act covered both litigious and non litigious
activities. The Hon'ble court held that the Act covered
of
both litigious and non-litigious -activities. This aspect

the ruling is, it is humbly submitted, ih contrary to the

held that
view taken by the Mohindroo case (supra) which

,j.,theActwasenactedunderEntryTTandTBofListiof
A; Schedule VII to the Constitution and was intended to
govern persons entitled to practice of law in the supreme
and Fligh courts. Having concluded as above' the

court

have
Hon'ble Bonlbay High Court held that RBI could not

n law
lidly giverl permission to liaison offices of foreig
nonfirms in India.to carry out activities perLaining to
the
litigious practice of law unless the conditions under

Actweresatisfied'Itisrespectfullysubmittedthatitwas

&

in this limited context that the Hon'ble Bombav Hiqh

"3
Court examined the issue of foreign lawyers falling under

the purview of the Act. The Hon'ble Coutt was not

concerned with whether the Act applied to foreign law or

whether qualified foreign lawyers could visit India o'n a

ry

temporary basis and give legal advice on issues of foreign

law.

It is submitted that this

party/respondent

Respondent

in the writ

was

not

proceedings before the

Hon'ble High Court of Bombay and therefore was not in

position to make representations gn these

issues

addressed in such proceedings. It is respectfully

submitted that the lury expounded by this Hon'ble Court

in Mohindroo case (supra) as well other cases regarding

the Scope of the Act has to be examined and

such

determination cannot be circumscribed by the views of

1)..

the Bom bay

H ig

h Cou rt.

.,

30.

The contents of Ground IV and V are denied and

disputed. This Respondent states that the interpretation
sought to be given to Section 24 of the Act by the
Petitioner is incorrect and contrary to \hu clear terms

the statute. The Act does not conceHl itself with

oT

the

practice of foreign law within the territory of India. This

aspect

been dealt with in detail by this Respondent

herein above.

The contents of Ground VI are denied and disputed, In

reply to this ground,

it is respectfully submitted that

the

Petitioner has erroneously averred that foreign lawyers

cannot partake in arbitrations conducted in India.

Arbitration is an alternate dispute mechanisnn and

lt is

not mandatory for a person to be1un'advocate'to

participate in such proceedings, whether as an arbitrator

or as a representative of any of the Iitigating parties.

it

is

pointed out that in arbitrations, persons other than

advocates can plead before the arbitrai tribunals and

even act as arbitrators. Therefore, there is no

qualification required to participate in such proceedings.
Though the Arbitration and Conciliation Act, Lgg6 does

not explicitly permit participation of foreign lawyers in

arbitration being held in India, it cannot be deduced that
the same is altogether prohibited under the Act' In fact,

the foreign lawyers may be required to participate in

arbitrations to advise on issues pertaining to fclreign !aw
or structure of transactions, and not necessarily to advise
on India law,

It is submitted
co

rrectly

that the Hon'ble Madras High Court

exa m in ed

the

natu

re

nd

cha

racter

of

-*@

commercial arbitration of an international nature in India, *,

3 ed
the genesis, legislative intent and history of the

Arbitration and Conciliation Act 1996 as well as India's

international obligations and policy towards promoting
arbitration in India to hold that there was nothing in law

which prohibited a party to an international commercial

arbitration from engaging a foreign lawyer

to

come to

India to give advice on foreign Iaw. This is especially true

when the contracting party is a foreign entity and seeks

in respect of the

advice of its own solicitors or lawyers

impact of laws of their country on the contract and

arbitration having its seat in India"

It is respectfully brou.ght to the notice of this Hon'ble

court that even the Union of India through its Law
Department (Respondent No. 2 herein) subscribed to the

view, by virfue of its counter affidavit dated 19 August,

;l\

i*r

2010 before the Hon'ble Madras High Court in W'P'(C)

56L4/2010 that foreign law firms should be allowed to
participate in arbitration in India. In para 9 of the above
mentioned affiddvit, it has been stated as follows:
"

It

is submitted that the Petitioner',s contention

,l

that foreign law firms shoutd nbt be allowed to

take part in negotiations settling

documents and arbitrations will

up

be counter

produgtive because international arbitrations

are not confined to a single country. Many

jq

arbitrati?ns with Indian iudges lawyers as

arbitrators ui" hetd outside India where both

foreign and Indian law firms advise their

If foreign law firms are denied entry to

deal with arbitrations in Indian then we will
clients,

lose many

of the arbitrations to, Singapore,

Paris and London. This

is contrary to

the

declared policy of the Government and will be

against the national interest especially when

the Government wants India to be a hub of

I nternatio na I Arb itrati o n."

32.

The contents of Ground VII are denied and disputed. In

reply to Ground VII, it is respectfully submitted that

Section 47 deals with the respective powers of the

i-

centrat Government and the Bar council of India to

prohibit or permit the practice of Indian law by noncitizens havi[g foreign qualifications in law. Sectio n 47 (t)
empowers the Central Government

to prohibit citizenS of

a country which unfairly discriminates against Indian'

lawyers with regard to practice of the laws of that
'practising Indian law in India. similarly,
country , frorn
Section 47(2) empowers the Bar Council of India to
rha rnnfiitinns- sghieCt tO WhiCh nOn-CitiZenS,

;
{

fo

with foreign qualifications in law, may enroll as advocates

under the Act. However, this Respondent states thr?3

f,

these powers pertain to the practice of Indian law under

the Act.

It is submitted that the averments in this ground

are erroneous inasmuch as the issue before this Hon'ble

Court is perrnissibility of practice of foreign Iaw by foreign
lawyers who are in India on a temporary basis to advise

their clients.

It

is further submitted that as regards the activities under

issue in the present petition, the Petitioner's contentions

are unmindful of the prevaient practice whereby qualified

Indian lawyers enrolled under the Act fly in and fly out of
foreign countries to render advice and consult on Indian
law issues without any requirement of meeting additional

ifications u nder the laws of those fo reig n

jurisdictions, Thus, it is submitted that the notion of
reciprocity will be upheld only if Indian laws permit
q ua

foreign lawyers to advise on foreign law in Indian on

temporary basis;

In view of the submissions made herein above, it

is

respectfully submitted that the Petitioner doep not have a good'

is no ground for grant of interim

-there
relief sought by the Petitioner since the ccntentions of the

case on merits, and

lt

@itioner in

su

PPort

of its

PraYer

for

relief are

interim

ho

misconceived and baseless'

It

is further submittted lhat in view of the submissions made'

above,

the present special leave petition is liable to

dismissed.

be

It is respectfully submitted that the Respondent No'

18 has not averred any new facts in the present affidavit and
all facts stated herein are part of records of the courts below.
l

London
3,1.1,2013

Touat-- 9*=
DEPON ET{T

VERIFICATION

I, Jonathan Lugard Forrest Brayne, do hereby verify that

the

contents of this Affidavit are true and correct and the contents
paras 1 to 6 are based on my personal knowledge, the

of

cl^.ntents

of paras 7 , B, !3, L4 are based on records available

to tZ and 15 to 32 are based on

legal advice redeived and believed to be correct' No part
therein is false and nothing material has been concealed

and the contents of paras 9

therefrom.
Verified at London on this 31 day of Janua'ry/ 2OL3'

GJ.$- K.-*1^-'-

DEPONENT

4e
Affirmed at One Bishops Square)
London, Er on{ this 31st day of )
Janu ary 2013

fF!..

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'lr,:

Before me: -

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t't.:

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London,England
(l . B. Bu rg ess)