Holding

Only advocates enrolled under the Advocates Act, 1961 may practice law in India, including non‑litigation work, and foreign lawyers may do so only on a casual, non‑regular basis or under the specific provisions of the Arbitration Act, while BPO services are subject to the Act if they amount to the practice of law.

Summary

The Bar Council of India appealed against orders allowing foreign law firms and lawyers to operate in India, arguing that the Advocates Act, 1961 restricts the practice of law to advocates enrolled with the Bar Council, covering both litigation and non‑litigation work. The Supreme Court examined whether foreign entities could give legal advice, draft documents, or conduct arbitrations without enrollment, and whether "fly‑in‑fly‑out" visits constituted practice. It held that the Act’s definition of practice includes non‑litigation activities and that only enrolled advocates may engage in such work, but a casual, occasional visit to advise on foreign law does not amount to practice. The Court also clarified that foreign lawyers may not be barred from arbitrations if institutional rules or the Arbitration Act apply, though they must adhere to Indian professional conduct rules. Finally, the Court ruled that BPO services are only covered by the Act if they amount to the practice of law. The appeals were disposed of, affirming the prohibition on foreign law firms practising Indian law.

Issues considered

Whether the expression ‘practice the profession of law’ includes only litigation or also non‑litigation activities.
Whether foreign law firms or foreign lawyers may practice in India without complying with the Advocates Act and Bar Council of India Rules.
Whether a foreign lawyer’s ‘fly‑in‑fly‑out’ visit to give advice on foreign law constitutes the practice of law.
Whether foreign law firms and lawyers are barred from conducting arbitration proceedings in international commercial arbitrations in India.
Whether Business Process Outsourcing (BPO) companies providing integrated services fall within the ambit of the Advocates Act.

Legislation cited

Advocates Act, 1961s. 24, s. 29, s. 32, s. 33, s. 35, s. 47(2) r/w s.49(1)(e), s. 49A
Arbitration and Conciliation Act, 1996s. 2(1)(f), s. 28(b), s. 34(2)(a)(iii), s. 48(1)(b), s. 53
Bar Council of India Rules, 1975
Foreign Exchange Regulation Act, 1973s. 29

Subjects

foreign lawyerspractice of lawAdvocates Actnon‑litigationarbitrationBPOlegal ethicsfly‑in‑fly‑outregulationBar Council of India

Judgment

[2018] 3 S.C.R. 229 229

BAR COUNCIL OF INDIA A

v

A.K. BALALJI AND ORS.

(Civil Appeal Nos. 7875-7879 of 2015) B
MARCH 13, 2018

[ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.]

Advocates Act, 1961:
C
ss. 24, 29, 47(2) r/w s.49(1)(e) and s.49A – Foreign law firms/
lawyers – Permissibility to practice in India – Held: Practice of law
includes litigation as well as non-litigation – Giving of opinion,
drafting of instruments, participation in conferences involving legal
discussion are parts of non-litigation practice – Regulatory
D
mechanism for conduct of advocates applies to non-litigation work
also – As per the Act, advocates enrolled with the Bar Council alone
are entitled to practice law – Foreign law firms/companies or foreign
lawyers cannot practice profession of law in India either in the
litigation or in non-litigation side – Visit of any foreign lawyer on
fly in and fly out basis may amount to practice of law if it is on E
regular basis – A casual visit for giving advice may not be covered
by the expression ‘practice’ – Whether a particular visit is casual
or frequent so as to amount to practice is a question of fact to be
determined from situation to situation – It is not correct that the Act
applies only if a person is practicing Indian law – A foreign lawyer
F
is not entitled even to practice foreign law in India without subjecting
himself to the regulatory mechanism of the Bar Council of India
Rules – Advocates Act equally deals with companies or firm and
individuals – Bar Council of India Rules,1975.

ss. 32 and 33 – Foreign law firms/lawyers – Permissibility to G
conduct arbitration proceedings – In respect of disputes arising
out of a contract relating to international commercial arbitration –
Held: There is no absolute right of foreign lawyer to conduct such
arbitration proceedings – However, they may not be debarred from
conducting such arbitration proceedings in view of ss. 32 and 33,
H
229
230 SUPREME COURT REPORTS [2018] 3 S.C.R.

A if the Rules of Institutional Arbitration apply or the matter is covered
by the provisions of Arbitration Act – But they will be governed by
Code of Conduct applicable to legal profession in India – Central
Government or Bar Council of India is at liberty to frame rules in
this regard.
B Applicability of the Act – To the customised and integrated
service provided by Business Process Outsourcing (BPO) Companies
– Held: If such services in pith and substance amount to practice of
law, the Act would be applicable – The manner in which they are
styled may not be conclusive.
C
Disposing of the appeals, the Court

HELD: 1. Ethics of the legal profession apply not only when
an advocate appears before the Court. The same also apply to
regulate practice outside the Court. Adhering to such ethics is
D integral to the administration of justice. The professional
standards laid down from time to time are required to be followed.
Thus, practice of law includes litigation as well as non litigation.
[Para 39] [270-A-B]

2. Practicing of law includes not only appearance in courts
E but also giving of opinion, drafting of instruments, participation
in conferences involving legal discussion. These are parts of non-
litigation practice which is part of practice of law. Scheme in
Chapter-IV of the Advocates Act makes it clear that advocates
enrolled with the Bar Council alone are entitled to practice law,
except as otherwise provided in any other law. All others can
F appear only with the permission of the court, authority or person
before whom the proceedings are pending. Regulatory
mechanism for conduct of advocates applies to non-litigation work
also. The prohibition applicable to any person in India, other than
advocate enrolled under the Advocates Act, certainly applies to
G any foreigner. The view of the Bombay High Court and Madras
High Court to the effect that foreign law firms/companies or
foreign lawyers cannot practice profession of law in India either
in the litigation or in non-litigation side, is upheld. [Paras 40 and
44] [270-C-E; 271-E-F]

H
BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS. 231

Pravin C. Shah versus K.A. Mohd. Ali (2001) 8 SCC A
650 : [2001] 3 Suppl. SCR 675 ; Ex. Capt. Harish Uppal
v. Union of India (2003) 2 SCC 45 : [2002] 5 Suppl.
SCR 186 – relied on.

3. Visit of any foreign lawyer on fly in and fly out basis may
amount to practice of law if it is on regular basis. A casual visit B
for giving advice may not be covered by the expression ‘practice’.
Whether a particular visit is casual or frequent so as to amount
to practice is a question of fact to be determined from situation
to situation. In case of a dispute whether a foreign lawyer was
limiting himself to “fly in and fly out” on casual basis for the C
purpose of giving legal advice to their clients in India regarding
foreign law or their own system of law and on diverse international
legal issues or whether in substance he was doing practice which
is prohibited can be determined by the Bar Council of India.
However, the Bar Council of India or Union of India will be at
liberty to make appropriate Rules in this regard including D
extending Code of Ethics being applicable even to such cases. It
is not correct that the Advocates Act applies only if a person is
practicing Indian law. It also cannot be said that a foreign lawyer
is entitled to practice foreign law in India without subjecting
himself to the regulatory mechanism of the Bar Council of India E
Rules. The Advocates Act equally deals with companies or firms
and individuals. If prohibition applies to an individual, it equally
applies to group of individuals or juridical persons. [Paras 41 and
44] [270-F-G; 271-G-H]

4. The direction of Madras High Court that foreign lawyers F
cannot be debarred from coming to India to conduct arbitration
proceedings in respect of disputes arising out of a contract
relating to international commercial arbitration is also modified.
There is no absolute right of the foreign lawyer to conduct
arbitration proceedings in respect of disputes arising out of a
G
contract relating to international commercial arbitration. If the
Rules of Institutional Arbitration apply or the matter is covered
by the provisions of the Arbitration Act, foreign lawyers may not
be debarred from conducting arbitration proceedings arising out

H
232 SUPREME COURT REPORTS [2018] 3 S.C.R.

A of international commercial arbitration in view of Sections 32 and
33 of the Advocates Act. However, they will be governed by
code of conduct applicable to the legal profession in India. Bar
Council of India or the Union of India are at liberty to frame rules
in this regard. [Para 45] [272-B-D]
B 5. The Court also modifies the direction of the Madras High
Court that the B.P.O. Companies providing wide range of
customized 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
C come within the purview of the Advocates Act, 1961 or the Bar
Council of India Rules. Mere label of such services cannot be
treated as conclusive. If in pith and substance the services amount
to practice of law, the provisions of the Advocates Act will apply
and foreign law firms or foreign lawyers will not be allowed to do
so. If their services do not directly or indirectly amount to practice
D of law, the Advocates Act may not apply. This is a matter which
may have to be dealt with on case to case basis having regard to
a fact situation.[Paras 43 and 46] [271-D-F]

Bar Council of Maharashtra v. M.V. Dabholkar
E (1976) 2 SCC 291 : [1976] 2 SCR 48 – referred to.

Roel v. New York County Lawyers Association 3 N.Y.
2d 224 (1957) ; Appell v. Reiner 43 N.J. 313 (1964) ;
204 A.2d 146 ; Zauderer v. Office of Disciplinary
Counsel 471 US 626 (1985) ; Shapero v. Kentucky Bar
F Association 486 US 466 – referred to.

Case Law Reference

[1976] 2 SCR 48 referred to Para 31

G [2001] 3 Suppl. SCR 675 relied on Para 38

[2002] 5 Suppl. SCR 186 relied on Para 38

H
BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS. 233

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7875- A
7879 of 2015.
From the Judgment and Order dated 21.02.2012 of the High Court
of Judicature at Madras in WP No. 5614 of 2010 and M.P. Nos.1, 3 to 5
of 2010.
B
WITH
Civil Appeal Nos.8028 and 7170 of 2015.
C. U. Singh, Rajiv Dutta, Sr. Advs, Ardhendumauli Kumar Prasad,
Ms. Taruna Ardhendumauli Prasad, Nirmal Kumar Ambastha, Namit
Saxena, Nakul Dewan, Vikash Singh, Himanshu Chaubey, Zain Maqbool, C
Ms. Neelu Mohan, Ms. Abhishikta Mallick, Subhro Sanyal, Advs for the
Appellant.
Maninder Singh, ASG, Arvind Datar, Sajjan Poovayya, Dushyant
Dave, Vikas Singh, Gurukrishna Kumar, Sr. Advs, Rishi Kumar, Mahesh
D
Agarwal, Ms. Neeha Nagpal, Rishi Agrawala, E.C. Agrawala,
Ms. Aastha Mehta, Ritin Rai, Chitranshul A. Sinha, Priyadarshi Banerjee,
Pratibhanu Singh K., Ms. Sonali Khanna, Abhas Kshetrapal, Jayant Malik,
M/s. Dua Associates, Sudhir Sharma, Abhishek Swaroop, Akhil Anand,
Ayush Malhotra (for Abhay Kumar), Ms. Madhavi Diwan, Abhinav
Mukherjee, Prabhas Bajaj, Akshay Amritanshu, M. K. Maroria, E
Mrs. Anil Katiyar, Vikrant Yadav (For M.C. Dhingra), Aditya Verma,
Ms. Jennifer Rohita Xavier, Vikas Singh Jangra, Ms. S. Lakshmi,
M.S. Ananth, Moazzam Khan, Alppak Banerjee, Dushyant Tiwari, Brijesh
Kumar, Akshat Goel (for M/s.Lex Pretia & Co.), Nakul Dewan, Vikash
Singh, Himanshu Chaubey, Zain Maqbool, Ms. Neelu Mohan,
F
Ms. Abhishikta Mallick, Syed Jafar Alam, Vipul Wadhwa, N. L. Ganapathi,
Aman Shukla, Dr. Lalit Bhasin, Yakesh Anand, Ms. Anindita Pujari,
Ms. Triveni Potekar, Syed Rehan, Ms. Kavita Bhardwaj, Satyajit Desai,
Ms. Anagha S. Desai, Ardhendumauli Kumar Prasad, C. Mukund, Pankaj
Jain, M. B. Elakkumanan, Bijoy Kumar Jain, Dr. Lalit Bhasin, Ms. Nina
Gupta, Mudit Sharma, Ms. Palak Chadha, Tushar Sharma, Purushottam G
Sharma Tripathi, Mrs. Shally Bhasin, Ritin Rai, C. Paramasivam, Rakesh
K. Sharma, Ms. Meera Mathur, Ms. Divya Harchandani, Nikhil Nayyar,
Advs for the Respondents.

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234 SUPREME COURT REPORTS [2018] 3 S.C.R.

A The Judgment of the Court was delivered by
ADARSH KUMAR GOEL, J. 1. The issue involved in this
batch of matters is whether foreign law firms/lawyers are permitted to
practice in India. Reference needs to be made to two leading matters.
Civil Appeal Nos.7875-79 of 2015 have been filed by the Bar Council of
B India against the Judgment of Madras High Court dated 21st February,
2012 in A.K. Balaji versus The Government of India1. Civil Appeal
No.8028 of 2015 has been filed by Global Indian Lawyers against the
judgment of Bombay High Court dated 16th December, 2009 in Lawyers
Collective versus Bar Council of India2.
C 2. The Madras High Court held as follows:
“63. After giving our anxious consideration to the matter, both
on facts and on law, we come to the following conclusion :-
(i) Foreign law firms or foreign lawyers cannot practice the
profession of law in India either on the litigation or non-
D litigation side, unless they fulfil the 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 Rules for
the foreign law firms or foreign lawyers to visit India for a
temporary period on a “fly in and fly out” basis, for the
E 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
F 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
G 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
1
AIR 2012 Mad 124
2
H 2010 (2) Mah LJ 726
BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS. 235
[ADARSH KUMAR GOEL, J.]

the Bar Council of India Rules. However, in the event of any A
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.”
3. The Bombay High Court, on the other hand, concluded as
follows: B
“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 Section C
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.” D

4. When the matter against the judgment of the Madras High
Court came up for hearing before this Court on 4th July, 2012, following
interim order was passed :
“In the meanwhile, it is clarified that Reserve Bank of India E
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
litigious matters as well as non-litigious matters other than F
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 in the Advocates
Act, 1961.” G
The said order has thereafter continued and is still in force.
5. In Civil Appeal Nos.7875-7879 of 2015, writ petition was filed
before the Madras High Court by one A.K. Balaji, Advocate. Apart
from official respondents, 32 law firms of U.K., U.S.A., France and
H
236 SUPREME COURT REPORTS [2018] 3 S.C.R.

A Australia have been impleaded as respondents 9 to 40. Prayer in the
writ petition is to take action against the original respondents 9 to 40 or
any other foreign law firms or foreign lawyers illegally practicing the
profession of law in India and direct them to refrain from having any
illegal practice on the litigation side and in the field of commercial
transactions in any manner whatsoever.
B
PLEADINGS
6. Averments in the petition are that the writ petitioner was an
advocate enrolled with the Bar Council of Tamil Nadu. To practice law
in India, a person has to be Indian citizen and should possess degree in
C law from a recognized University in India. Nationals of other countries
could be admitted as advocates in India only if citizens of India are
permitted to practice in such other countries. Foreign degree of law
from a University outside India requires recognition by the Bar Council
of India. The Indian advocates are not allowed to practice in U.K.,
U.S.A., Australia and other foreign nations except on fulfilling onerous
D restrictions like qualifying tests, experience, work permit. Foreign
lawyers cannot be allowed to practice in India without reciprocity.
7. Under the Advocates Act (the Act), a foreigner is not entitled
to practice in India in view of bar contained in Section 29. However,
under the guise of LPOs (Legal Process Outsourcing), conducting
E seminars and arbitrations, foreign lawyers are visiting India on Visitor
Visa and practicing illegally. They also violate tax and immigration laws.
They have also opened their offices in India for practice in the fields of
mergers, take-overs, acquisitions, amalgamations, etc. Disciplinary
jurisdiction of the Bar Council extends only to advocates enrolled under
F the Act. In India, the legal profession is considered as a noble profession
to serve the society and not treated as a business but the foreign law
firms treat the profession as trade and business venture to earn money.
Indian lawyers are prohibited from advertising, canvassing and solicit
work but foreign law firms are advertising through websites and canvass
and solicit work by assuring results. Many accountancy and management
G firms are also employing graduates and thus rendering legal services.
8. The stand of the Union of India initially was that if foreign law
firms are not allowed to take part in negotiations, settling of documents
and arbitrations in India, it will obstruct the aim of making India a hub of
international arbitration. Many arbitrations with Indian Judges as
H
BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS. 237
[ADARSH KUMAR GOEL, J.]

arbitrators and Indian lawyers are held outside India where foreign and A
Indian law firms advise their clients. Barring the entry of foreign law
firms for arbitrations in India will result in many arbitrations shifting to
Singapore, Paris and London, contrary to the declared policy of the
Government and against national interest. However, its final stand in
affidavits dated 19th April, 2011 and 17th November, 2011 was different
B
as recorded in Para 3 of the High Court Judgment as follows :
“3 . 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 C
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 D
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 1 st
respondent in his counter warns that if the foreign law firms
are not allowed to take part in negotiations, settling up E
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 F
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 G
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,
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238 SUPREME COURT REPORTS [2018] 3 S.C.R.

A 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
B
Courts.”
(emphasis added)
9. In this Court, stand of the Union of India is that presently it is
waiting for the Bar Council of India to frame rules on the subject.
C However, it can frame rules under Section 49A at any stage.
10. Stand of the Bar Council of India before the High Court is
that even non litigious practice is included in the practice of law which
can be done only by advocates enrolled under the Act. Reliance was
placed on the judgment of the Bombay High Court in Lawyers Collective
D (supra). Further reference was made to Sections 24 and 29 of the Act.
Section 47(2) read with Section 49(1)(e) provides for recognition of
qualifications of foreigners being recognized for practice. It was
submitted that practice of foreign lawyers in India should be subject to
regulatory powers of the Bar Council.

E 11. Stand of the foreign law firms, inter alia, is that there is no
bar to a company carrying on consultancy/support services in the field
of protection and management of intellectual, business and industrial
proprietary rights, carrying out market service and market research,
publication of reports, journals etc. A person not appearing before Courts
or Tribunals and not giving legal advice cannot be said to be practice of
F law. The ninth respondent stated that it was a part of group of companies
and not a law firm and was duly registered under the Indian Companies
Act, 1956. The tenth respondent, another foreign law firm, submitted
that there is no violation of law in giving advice on foreign law. Even
Indian lawyers are permitted to practice outside India and issue of
G reciprocity is a policy matter to be decided by the Government of India.
It does not have a law office in India and does not give advice on Indian
laws. In England, foreign lawyers are free to advice on their own system
of law without nationality requirement or qualification of England. The
eleventh respondent is an American law firm and submitted that it advises
clients on international legal issues from different countries. Indian clients
H
BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS. 239
[ADARSH KUMAR GOEL, J.]

are given advice through Indian lawyers and law firms which are enrolled A
with the Bar Council. There is no discrimination in U.S. against Indian
citizens practicing law. Indian lawyers travel to US on temporary basis
for consultation on Indian law issues.
12. The Act and the Bar Council Rules govern practice of Indian
law and not foreign law. Participation in seminars and conferences does B
not constitute practice in law. The fourteenth respondent denied the
existence of its office in India and that it was practicing Indian law. It
also took the same stand as Respondent No.11 that regulatory framework
for advocates did not govern practice of foreign law. It denied that it is
operating a Legal Process Outsourcing office (LPOs) in India. Its
lawyers fly in and fly out of India on need basis to advice clients on C
international transactions. To the extent Indian law is involved, such
matters are addressed by Indian lawyers. If the foreign law firms are
prevented from advice on foreign law, the transaction cost of Indian
clients for consultation on foreign law will increase. Other foreign law
firms have also taken more or less similar stand. Fifteenth respondent D
stated that it is a Business Process Outsourcing (BPO) company providing
wide range of customized and integrated services and functions. The
sixteenth respondent also stated that it has no office in India and is only
rendering services other than practice of Indian law. The eighteenth
respondent stated that it does not have any office in India and does not
practice law in India. It only advises on non Indian law. Respondent E
Nos.19, 26, 39 and 40 stated that they are limited law partnerships under
Laws of England. They do not have any law office in India. Respondents
Nos.20, 21, 24, 25, 27, 28, 30, 31, 32, 33, 34 and 38 also stated that they
do not have any office in India and do not practice Indian law. Indian
lawyers cannot advice on foreign laws and the requirement of Indian F
litigants in regard is met by foreign lawyers. Its lawyers fly in and fly
out of India on need basis to advise the clients on international transactions.
To the extent Indian law is involved such matters are addressed by Indian
lawyers.
13. The respondent No.22 stated that it is an international law G
firm but does not have any office in India. It advises clients on laws
other than Indian laws. Its India Practice Group advises clients on
commercial matters involving an “Indian Element” relating to mergers,
acquisitions, capital markets, projects, energy and infrastructure, etc.
from an international legal perspective and it does not amount to practice
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240 SUPREME COURT REPORTS [2018] 3 S.C.R.

A in Indian law. Respondent No.23 stated that it is only advising on matters
of English, European Union and Hong Kong laws. It has working
relationships with leading law firms in major jurisdictions and instructs
appropriate local law firms to provide local law advice. Respondent
No.29 stated that it is a limited law partnership registered in England and
Wales and does not have office in India. It does not represent parties in
B
Indian courts nor advises on Indian law. Respondent No.35 stated that
it does not maintain any office in India and its expertise in international
law. 36th Respondent stated that it does not practice Indian law and has
no office in India nor it operates any LPO. Its lawyers fly in and fly out
on need basis to advise clients on international transactions or matters
C involving Australian laws or international Benches to which there is an
Indian component. Working of Indian laws is entrusted to Indian lawyers.
The 37th Respondent denied that it has any office in India or is running
LPO in India. It only advises with respect to regulatory laws other than
Indian law.
D FINDINGS
14. The High Court upheld the plea of the foreign law firms to the
effect that there was no bar to such firms taking part in negotiations,
settling of documents and conducting arbitrations in India. There was
no bar to carrying on consultancy/support services in the field of protection
E and management of intellectual, business and industrial proprietary rights,
carrying out market survey and research, publication of reports, journals
etc. without rendering any legal advice. This could not be treated as
practice of law in India. Referring to Section 2(1)(f) of the Arbitration
and Conciliation Act, 1996 (the Arbitration Act), it was observed that if
in international commercial arbitration, India is chosen as the seat of
F arbitration, the foreign contracting party is bound to seek assistance from
lawyers of their own country on the contract. There could be no prohibition
for such foreign lawyers to advise their clients on the foreign law.
15. Judgment of the Bombay High Court in Lawyers Collective
(supra) was distinguished on the ground that setting up of law offices for
G litigious and non litigious matters was different but if a foreign law firm
without establishing any liaison office in India offers advice to their clients
on foreign law, there was no legal bar to do so.
16. The Bombay High Court in its judgment observed:

H
BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS. 241
[ADARSH KUMAR GOEL, J.]

“44. It appears that before approaching RBI, these foreign A
law firms 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
B
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. C
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 carry
on the practise in non litigious matters without being enrolled
as Advocates under the 1961 Act ? D
46. Before dealing with the rival contentions on the above
question, we may quote Sections 29, 30, 33 and 35 of the
1961 Act, which read thus:
29. Advocates to be the only recognised class of persons
entitled to practice law. - Subject to the provisions of this E
Act and any rules made there under, there shall, as from
the appointed day, be only one class of persons entitled to
practise the profession of law, namely, advocates. (not
brought into force so far)
30. Right of advocates to practise. -Subject to provisions F
of this Act, every advocate whose name is entered in the
State roll shall be entitled as of right to practise throughout
the territories to which this Act extends,
(i) in all Courts including the Supreme Court;
G
(ii) before any tribunal or person legally authorized to
take evidence;
(iii) before any other authority or person before whom
such advocate by or under any law for the time being in
force entitled to practise.
H
242 SUPREME COURT REPORTS [2018] 3 S.C.R.

A 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 practice in any Court or before
any authority or person unless he is enrolled as an advocate
under this Act.
B
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.
C
(1-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.
D
(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.

E (3) The disciplinary committee of a State Bar Council after
giving the advocate concerned and the Advocate-General
an opportunity of being heard, may make any of the
following orders, namely:
(a) dismiss the complaint or, where the proceedings were
F initiated at the instance of the State Bar Council, direct
that the proceedings be filed;
(b) reprimand the advocate;
(c) suspend the advocate from practice or such period
as it may deem fit;
G (d) remove the name of the advocate from the State roll
of advocates.
(4) Where an advocate is suspended from practice under
Clause (c) of Sub-section (3), he shall, during the period
of suspension, be debarred from practising in any Court
H or before any authority or person in India.
BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS. 243
[ADARSH KUMAR GOEL, J.]

(5) Where any notice is issued to the Advocate-General A
under Subsection (2), the Advocate-General may appear
before the disciplinary committee of the State Bar Council
either in person or through any advocate appearing on
his behalf. Explanation-In this section, (Section 37 and
Section 38), the expressions “Advocate-General” and
B
“Advocate-General of the State” shall, in relation to the
Union territory of Delhi, mean the Additional Solicitor
General of India.
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 C
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 D
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 E
matters, that is, practising before Court and other authorities ?
48. In the statements of Objects & Reasons for enacting the
1961 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 F
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 G
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.
H
244 SUPREME COURT REPORTS [2018] 3 S.C.R.

A 49. Apart from the above, Section 29 of the 1961 Act
specifically provides is that from the appointed day, there
shall be only one class of persons entitled to practice 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 appointed day
B
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 by
C way of practise in non litigious matters.
50. Section 33 of the 1961 Act is a prohibitory section in the
sense 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
D 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, may or 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
E 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.
F 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
practice before any Court / authority it cannot be inferred
that the 1961 Act applies only to persons practising in litigious
G 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 provisions for breaches committed by a person
practicing in non-litigious matter and, therefore, the 1961
H
BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS. 245
[ADARSH KUMAR GOEL, J.]

Act cannot apply to persons practising in non-litigious matters. A
There is no merit in this contention, because, Section 35 of
the 1961 Act provides punishment to an advocate who is found
to be guilty of professional or other misconduct. The fact that
Section 45 of the 1961 Act provides imprisonment for persons
illegally practicing in Courts and before other authorities, it
B
cannot be said that the 1961 Act does not contain provisions
to deal with the persons found guilty of misconduct while
practising in non litigious matters. Once it is held that the
persons entitled to practice the profession of law under the
1961 Act covers the persons practising the profession of law
in litigious matters as well as non-litigious matters, then, the C
penal provisions contained in Section 35 of the 1961 Act would
apply not only to persons practising in litigious matter, but
would also apply to persons practising the profession of law
in non-litigious matters. The very object of the 1961 Act and
the Rules framed by the Bar Council of India are to ensure
D
that the persons practising the profession of law whether in
litigious matters or in non litigious matters, maintain high
standards in professional conduct and etiquette and,
therefore, it cannot be said that the persons practising in non
litigious matters are not governed by the 1961 Act.
52. Strong reliance was placed by the counsel for the E
respondent 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 F
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 the persons practising only before the G
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,
H
246 SUPREME COURT REPORTS [2018] 3 S.C.R.

A the Parliament under entry 77 & 78 in List I of the Seventh
Schedule to make legislation only in respect of the advocates
practicing 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,
B
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 construction is
unwarranted because, once the Parliament invokes its power
to legislate on advocates practising the profession of law, then
C the entire field relating to advocates would be open to the
Parliament to legislate and accordingly the 1961 Act has been
enacted to cover the entire field. In any event, the question as
to whether the persons practicing the profession of law
exclusively in non-litigious matters are covered under the 1961
Act, or not was not an issue directly or indirectly considered
D
by the Apex Court in the case of O.N. Mohindroo (supra).
Therefore, the decision of the Apex Court in the above case
does not support the case of the contesting respondents.
……..
……..
E
55. It was contended by the counsel for Union of India that if
it is 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
F 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. Moreover, a bureaucrat
drafting documents or giving opinion is answerable to his
superiors, whereas, a law firm or an individual engaged in
G
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
H matters within the purview of the 1961 Act.
BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS. 247
[ADARSH KUMAR GOEL, J.]

56. The argument that the 1961 Act and the Bar Councils A
constituted there under 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 v. Board of
Management, Dayanand College of Law reported in MANU/
SC/5219/2006 : (2007) 2 SCC 202 held thus:
B
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 C
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 D
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 there under have limited role to play in the field E
relating to practising the profession of law.
57. It is not in dispute that once a person is enrolled as an
advocate, he is entitled to practise the profession of law in
litigious matters as well as non-litigious matters. If the
argument of the respondents that the 1961 Act is restricted to F
the persons practising the profession of law in litigious matters
is accepted, then an advocate found guilty of misconduct in
performing his duties while practising in non-litigious matters
cannot be punished under the 1961 Act. Similarly, where an
advocate who is debarred for professional misconduct can
merrily carry on the practise in nonlitigious matters on the G
ground that the 1961 Act is not applicable to the persons
practising the profession of law in non litigious matters. Such
an argument which defeats the object of the 1961 Act cannot
be accepted.
H
248 SUPREME COURT REPORTS [2018] 3 S.C.R.

A 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
B
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
C 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
D 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 litigious matters
would be governed by the 1961 Act and the Bar Councils
framed there under, apart from the powers of the Court to
take appropriate action against advocates who are found
E 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
F the expressions ‘ to practise the profession of law’ in 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
G follow the provisions contained in the 1961 Act. The petition
is disposed of accordingly with no order as to costs.”
17. The Madras High Court agreed with the above view as follows :
“44. As noticed above, the facts of the case before the Bombay
High Court were that the respondents which were foreign law
H firms practising the profession of law in US/UK sought
BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS. 249
[ADARSH KUMAR GOEL, J.]

permission to open their liaison office in India and render A
legal assistance to another person in all litigious and non-
litigious matters. The Bombay High Court, therefore, rightly
held that establishing liaison office in India by the foreign
law firm and rendering liaisoning activities in all forms cannot
be permitted since such activities are opposed to the provisions
B
of the Advocates Act and the Bar Council of India Rules. We
do not differ from the view taken by the Bombay High Court
on this aspect.”
18. The Madras High Court after above observation proceeded
to consider the matter as follows:
C
“45 . However, the issue which falls for consideration before this
Court is as to whether a foreign law firm, without establishing any
liaison office in India visiting India for the purpose of offering
legal advice to their clients in India on foreign law, is prohibited
under the provisions of the Advocates Act. In other words, the
question here is, whether a foreign lawyer visiting India for a D
temporary period to advise his client on foreign law can be barred
under the provisions of the Advocates Act. This issue was neither
raised nor answered by the Bombay High Court in the aforesaid
judgment.”
19. It was held : E

“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 F
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 G
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 H
250 SUPREME COURT REPORTS [2018] 3 S.C.R.

A 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
B
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,
C 1996 the Law Commission of India, several representative
bodies of trade and industry and experts in the field of
arbitration have proposed amendments to the Act to make it
more responsive to contemporary requirements. It was also
recognised that the economic reforms in India may not fully
D become effective if the law dealing with settlement of both
domestic and international commercial disputes remains out
of tune with such reforms. The United Nations Commission
on International Trade Law (UNCITRAL) adopted in 1985
the Model Law on International Commercial Arbitration. The
Arbitration and Conciliation Act is, therefore, consolidated
E and amended to the law relating to domestic and international
commercial arbitration as well as for the enforcement of
foreign arbitral award. The Act was enacted as a measure of
fulfilling India’s obligations under the International Treaties
and Conventions. On account of the growth in the
F international trade and commerce and also on account of
long delays occurring in the disposal of suits and appeals in
courts, there has been tremendous movement towards the
resolution of disputes through alternative forum of arbitrators.
53. Section 2(1)(f) of the Act defines the term “International
G Commercial Arbitration” as under:-
(f) International Commercial Arbitration means an
arbitration relating to disputes arising out of legal
relationships, whether contractual or not, considered
as commercial under the law in force in India and where
H at least one of the parties is
BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS. 251
[ADARSH KUMAR GOEL, J.]

(i) an individual who is a national of, or habitually resident A
in, any country other than India; or
(ii) a body corporate which is incorporated in any country
other than India; or
(iii) a company or an association or a body of individuals
whose central management and control is exercised in B
any country other than India; or
(iv) the Government of a foreign country.
54. From the above definition, it is manifestly clear that any
arbitration matter between the parties to the arbitration C
agreement shall be called an “international commercial
arbitration” if the matter relates to the disputes, which may
or may not be contractual, but where at least one of the parties
habitually resides abroad whether a national of that country
or not. The New York Convention will apply to an arbitration
agreement if it has a foreign element or flavour involving D
international trade and commerce, even though such an
agreement does not lead to a foreign award.
55. International arbitration is growing big time in India and
in almost all the countries across the globe. India is a signatory
to the World Trade Agreement, which has opened up the gates E
for many international business establishments based in
different parts of the world to come and set up their respective
businesses in India.
56 . Large number of Indian Companies have been reaching
out to foreign destinations by mergers, acquisition or direct F
investments. As per the data released by the Reserve Bank of
India during 2009, the total out ward investment from India
excluding that which was made by Banks, had increased
29.6% to U.S. Dollar 17.4 billion in 2007-08 and India is
ranked third in global foreign direct investment. Overseas
G
investments in joint ventures and wholly owned subsidiaries
have been recognized as important avenues by Indian
Entrepreneurs in terms of foreign exchange earning like
dividend, loyalty, etc. India is the 7th largest, the second most
populated country and the fourth largest economy in the
world. Various economic reforms brought about have made H
252 SUPREME COURT REPORTS [2018] 3 S.C.R.

A India grow rapidly in the Asia-Pacific Region, and the Indian
Private Sector has offered considerable scope for foreign
direct investment, joint-venture and collaborations.
Undoubtedly, these cross-border transactions and investments
would give bigger opportunities for members of the legal
fraternity, in order to better equip themselves to face the
B
challenges. It is common knowledge that in the recent past,
parties conducting International Commercial Arbitrations
have chosen India as their destination. The arbitration law
in India is modelled on the lines of the UNCITRAL Model
Law of Arbitration and makes a few departures from the
C principles enshrined therein. The Arbitration and Conciliation
Act 1996, provides for international commercial arbitration
where at least one of the parties is not an Indian National or
Body corporate incorporated in India or a foreign
Government.
D 57. Institutional Arbitration has been defined to be an
arbitration conducted by an arbitral institution in accordance
with the rules of the institution. The Indian Council of
Arbitration is one such body. It is reported that in several
cases of International Commercial Arbitration, foreign
contracting party prefers to arbitrate in India and several
E reasons have been stated to choose India as the seat of
arbitration. Therefore, when there is liberalization of economic
policies, throwing the doors open to foreign investments, it
cannot be denied that disputes and differences are bound to
arise in such International contracts. When one of the
F contracting party is a foreign entity and there is a binding
arbitration agreement between the parties and India is chosen
as the seat of arbitration, it is but natural that the foreign
contracting party would seek the assistance of their own
solicitors or lawyers to advice them on the impact of the laws
of their country on the said contract, and they may accompany
G their clients to visit India for the purpose of the Arbitration.
Therefore, if a party to an International Commercial
Arbitration engages a foreign lawyer and if such lawyers come
to India to advice their clients on the foreign law, we see
there could be no prohibition for such foreign lawyers to
H advise their clients on foreign law in India in the course of a
BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS. 253
[ADARSH KUMAR GOEL, J.]

International Commercial transaction or an International A
Commercial Arbitration or matters akin thereto. Therefore, to
advocate a proposition that foreign lawyers or foreign law
firms cannot come into India to advice their clients on foreign
law would be a far fetched and dangerous proposition and
in our opinion, would be to take a step backward, when India
B
is becoming a preferred seat for arbitration in International
Commercial Arbitrations. It cannot be denied that we have a
comprehensive and progressive legal frame work to support
International Arbitration and the 1996 Act, provides for
maximum judicial support of arbitration and minimal
intervention. That apart, it is not in all cases, a foreign C
company conducting an International Commercial Arbitration
in India would solicit the assistance of their foreign lawyers.
The legal expertise available in India is of International
standard and such foreign companies would not hesitate to
avail the services of Indian lawyers. Therefore, the need to
D
make India as a preferred seat for International Commercial
Arbitration would benefit the economy of the country.
58. The Supreme Court in a recent decision in Vodafone
International Holdings B.V. vs. Union of India and another,
SLP(C) No.26529 of 2010, dated 20.01.2012, observed that
every strategic foreign direct investment coming to India, as E
an investment destination should be seen in a holistic manner.
The Supreme Court observed that the question involved in
the said case was of considerable public importance,
especially on Foreign Direct Investment, which is indispensable
for a growing economy like India. Therefore, we should not F
lose site of the fact that in the overall economic growth of the
country, International Commercial Arbitration would play a
vital part. The learned counsel appearing for the foreign law
firms have taken a definite stand that the clients whom they
represent do not have offices in India, they do not advise
their foreign clients on matters concerning Indian Law, but G
they fly in and fly out of India, only to advise and hand-hold
their clients on foreign laws. The foreign law firms, who are
the private respondents in this writ petition, have accepted
the legal position that the term “practice” would include both
litigation as well as non-litigation work, which is better known H
254 SUPREME COURT REPORTS [2018] 3 S.C.R.

A as chamber practice. Therefore, rendering advice to a client
would also be encompassed in the term “practice”.
59. As noticed above, Section 2(a) of the Advocates Act
defines ‘Advocate’ to mean an advocate entered in any roll
under the provisions of the Act. In terms of Section 17(1) of
B the Act, every State Bar Council shall prepare and maintain a
roll of Advocates, in which shall be entered the names and
addresses of (a) all persons who were entered as an Advocate
on the roll of any High Court under the Indian Bar Council
Act, 1926, immediately before the appointed date and (b) all
other persons admitted to be Advocates on the roll of the State
C Bar Council under the Act on or after the appointed date. In
terms of Section 24(1) of the Act, subject to the provisions of
the Act and the Rules made thereunder, a person shall be
qualified to be admitted as an advocate on a state roll if he
fulfils the conditions (a) a citizen of India, (b) has completed
D 21 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
E 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 Sub-Section (2) of Section 47, subject to
F 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
G 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
H under the Act. The exceptions are provided under the proviso
BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS. 255
[ADARSH KUMAR GOEL, J.]

to Section 24(1)(a), Section 24(1)(c)(iv) and Section 47(2). A
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
B
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 C
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 D
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. It is pointed out
that if an interpretation is given to prohibit practice of foreign E
law by a foreign law firms within India, it would result in a
manifestly absurd situation wherein only Indian citizens with
Indian Law degree who are enrolled as an advocate under
the Advocates Act could practice foreign law, when the fact
remains that foreign laws are not taught at graduate level in F
Indian Law schools, except Comparative Law Degree Courses
at the Master’s level.
61. As noticed above, the Government of India, in their
counter affidavit dated 19.08.2010, have stated that the
contention raised by the petitioner that foreign law firms G
should not be allowed to take part in negotiating settlements,
settling up documents and arbitrations will be counter
productive, as International Arbitration will be confined to a
single country. It is further pointed out that many arbitrations
are held outside India with Indian Judges and Lawyers as
H
256 SUPREME COURT REPORTS [2018] 3 S.C.R.

A Arbitrators where both foreign and Indian Law firms advise
their clients. It has been further stated if foreign law firms
are denied permission to deal with arbitration in India, then
we would lose many arbitrations to other countries and this
is contrary to the declared policy of the Government and will
be against the National interest, especially when the
B
Government wants India to be a hub of International
Arbitration
62. At this juncture, it is necessary to note yet another
submission made by the Government of India in their counter.
It has been stated that law firms as such or not required to
C register themselves or require permission to engage in non-
litigation practice and that Indian law firms elsewhere are
operating in a free environment without any curbs or
regulations. It is further submitted that the oversight of the
Bar Council on non-litigation activities of such law firms was
D virtually nil till now, and exploiting this loop hole, many
accountancy and management firms are employing law
graduates, who are rendering legal services, which is contrary
to the Advocates Act. Therefore, the concern of the
Government of India as expressed in the counter affidavit
requires to be addressed by the Bar Council of India. Further,
E it is seen that the Government in consultation with the Bar
Council of India proposes to commission a study as to the
nature of activities of LPOs, and an appropriate decision
would be taken in consultation with the Bar Council of India.”
RIVAL CONTENTIONS
F
20. Shri C.U. Singh, learned senior counsel for the Bar Council of
India submitted that Advocates enrolled with the Bar Council of India
are the only recognized class of persons entitled to practice law in India.
Unless any other law so permits, no person can practice before any
‘Court, authority or person’ other than an Advocate enrolled under the
G Act. In particular cases, the ‘Court, authority or person’ may permit a
person other than an advocate enrolled under the Act to appear before
him. It was submitted that the expression “practice profession of law”
covered not only appearance before the Court but also opinion work
which is also known as chamber practice. The Ethics prescribed by the
H Bar Council of India covered not only conduct in appearing before Court
BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS. 257
[ADARSH KUMAR GOEL, J.]

or authority but also in dealing with the clients including giving legal A
opinion, drafting or participation in law conference. If a person practices
before any ‘Court, authority or person’ illegally, is liable to punishment
for imprisonment which may extend to six months. Thus, the view taken
by the Madras High Court that visit by a foreign lawyer on fly in and fly
out basis to give advice on foreign law or to conduct arbitration in
B
international commercial arbitrations was erroneous. Reference has
also been made to definition of the term ‘advocate’ under Section 2(a)
of the Act. Section 6 lays down functions of the Bar Council including
admission of persons as advocates, safeguarding rights, privileges and
interests of advocates. Section 17 lays down that every State Bar Council
shall prepare a roll of advocates and no person can be enrolled in more C
than one State Bar Council. Section 24 lays down qualifications for
admission on the roll of a State Bar council. The qualifications include
the citizenship of India, unless a person is national of a country where
citizens of India are permitted to practice. One is required to have the
prescribed qualification from India or out of India if such degree is
D
recognized by the Bar Council of India, being a Barrister called to the
Bar before 31st December, 1976, passing of articled clerks examination
or any other examination specified by the Bombay or Calcutta High
Court or obtaining foreign qualification recognized by the Bar Council of
India are also the prescribed qualifications. It was submitted that even
in other jurisdictions, persons other than those enrolled with the concerned E
Bar Council are not allowed to practice. Even short term running of
legal service is subject to regulatory regime.
21. Learned counsel for the foreign law firms S/Shri Arvind Datar,
Sajjan Poovayya, Dushyant Dave, learned senior counsel and Mr. Nakul
Dewan, learned counsel supported the direction of the Madras High F
Court permitting foreign lawyers to render legal services on fly in and
fly out basis and also with reference to international commercial
arbitrations. It was submitted that Bar Council could come into picture
only in respect of advocates enrolled with it. It is only with reference to
appearance before the Courts or other authorities or persons that the
regulatory regime of the Bar Council may apply but with regard to non G
litigation/advisory work even those not enrolled as advocates under the
Advocates Act are not debarred. It was also submitted by Shri Dewan
that Advocates Act applies only to individuals and not to law firms.
Provision for reciprocity applies only for enrolment under the Advocates
Act and not for casual legal services on fly in and fly out basis or in H
258 SUPREME COURT REPORTS [2018] 3 S.C.R.

A connection with international commercial arbitration. Foreign lawyers
are regulated by the disciplinary regime applicable to them and only
their Bar Councils could take action with regard to their working in India
also. Practice of law in India did not cover advising on foreign law.
Thus, if by a pre-determined invitation, a foreign lawyer visited India to
advise on a foreign law, there is no bar against doing so.
B
22. Certain decisions have been cited at the Bar to which reference
may be made. In Roel versus New York County Lawyers Association3,
the Court of Appeals of the State of New York dealt with a case where
a Mexican citizen and lawyer, who was not a citizen of the United States
nor a member of the New York Bar, maintained his office in New York
C and advised members of the public on Mexican law. He did not give any
advice as to New York law. The majority held that this was not
permissible. It was observed:
“To allow a Mexican lawyer to arrange the institution of
divorce proceedings for a New York resident in a Mexican
D court, without allowing him to tell the client that the divorce
might be invalid (Querze v. Querze, 290 N.Y. 13) or that it
might adversely affect estate or other property rights or status
in this State (Matter of Rathscheck, 300 N.Y. 346), is to give
utterly inadequate protection to him (See 70 Harv.L.Rev. 1112-
1113). Nor are we in anywise persuaded by the argument in
E
the brief of the Association of the Bar that there is any
difference between the right of a Mexican lawyer to act and
advise the public in divorce matters and the right (3 N.Y.2d
232) of foreign lawyers generally to act an advise with respect
to foreign law. … …
F The complex problem posed by the activities of foreign
attorneys here is a long-standing one. It may well be that
foreign attorneys should be licensed to deal with clients in
matters exclusively concerning foreign law, but that is solely
within the province of the Legislature. Our courts are given
G much control over the lawyers admitted to the Bar of our State;
we have no control, however, over those professing to be foreign
law experts.
We see no substance in appellant’s claim that section 270 of
the Penal Law when applied to him deprives him of liberty
3
3 N.Y.2d 224 (1957)
H
BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS. 259
[ADARSH KUMAR GOEL, J.]

and property without due process of law, in that the statute as A
so construed is unreasonable and serves no public purpose.”
23. The minority view, on the other hand, held that:
“In this century when the United States has become the
creditor nation of the world and when the ramifications of
our industrial, commercial, financial and recreational lives B
extend to every corner of the global, it is especially improbable
that the Legislature intended to preclude the giving of legal
advice in this State to our citizens concerning these far-flung
enterprises by trained lawyers from abroad who are equipped
to give accurate information and opinions regarding them. C
The customary residential requirements for admission to the
Bar would in themselves often preclude their becoming
admitted to our Bar. … …
The omission of the Legislature to enact statutes licensing or
regulating the conduct of foreign lawyers in practicing purely D
foreign law in this State, does not indicate that such conduct
is prohibited by sections 270 and 271 of the Penal Law, but
merely that the Legislature has not seen fit to subject them to
regulation. Whatever the merits of such proposed legislation,
it is not for us to enact it. If foreign lawyers came under
section 270 and 271 of the Penal Law, it would stifle their E
activities to the detriment of the large and increasing number
of our nationals who engage in transactions in foreign
countries, inasmuch as it would be impossible for most of
them to be admitted to practice in this State.”
24. In Appell versus Reiner4, the Supreme Court of New Jersey F
dealt with a case of New York lawyer, who was not admitted to the
New Jersey Bar, giving legal services to New Jersey residents in a
matter involving the extension of credit and the compromise of claims
held by New York and New Jersey creditors. The Chancery Division
held that the New York lawyer could not advice in respect of New G
Jersey creditors. The Supreme Court of New Jersey held:-
“The Chancery Division correctly delineated the generally
controlling principle that legal services to be furnished to
New Jersey residents relating to New Jersey matters may be
4
43 N.J. 313 (1964); 204 A.2d 146 H
260 SUPREME COURT REPORTS [2018] 3 S.C.R.

A furnished only by New Jersey counsel. We nevertheless
recognize that there are unusual situations in which a strict
adherence to such a thesis is not in the public interest. In this
connection recognition must be given to the numerous multi-
state transactions arising in modern times. This is particularly
true of our State, situated as it is in the midst of the financial
B
and manufacturing center of the nation. An inflexible
observance of the generally controlling doctrine may well
occasion a result detrimental to the public interest, and it
follows that there may be instances justifying such exceptional
treatment warranting the ignoring of state lines. This is such
C a situation. Under the peculiar facts here present, having in
mind the nature of the services to be rendered, the
inseparability of the New York and New Jersey transactions,
and the substantial nature of the New York claim, we conclude
that plaintiff ’s agreement to furnish services in New Jersey
was not illegal and contrary to public policy.
D
It must be remembered that we are not here concerned with
any participated by plaintiff in a court proceeding. What is
involved is the rendering of advice and assistance in obtaining
extensions of credit and compromises of indebtedness. … …”
E 25. Again, there was a dissenting view as follows:
“… …Regulation of the interests of the public and the bar
requires a rule of general application. In cases such as we
have here, the only fair and workable rule is one which
recognizes that the client’s matter is primarily a New Jersey
F one and calls for the engagement of a member of our bar for
the legal services to be rendered here. And, in that connection,
in the interest of interstate amity, if an out-of-state attorney
renders legal services in New Jersey which are a minor or
incidental part of a total problem which has its principal and
primary aspects in his state, he should be allowed to recover
G in our courts for the work done in this jurisdiction.”
26. Mr. Poovayya referred to Rules of the Indian Council of
Arbitration which could apply only if there was an agreement between
the parties that the arbitration was to be in accordance with the Rules of
the Indian Council of Arbitration. Rule 45 laid down that parties have no
H
BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS. 261
[ADARSH KUMAR GOEL, J.]

right to be represented by lawyers unless the arbitral tribunal considers A
it necessary and allows.
27. Referring to the Arbitration Act, it was submitted that
international commercial arbitration is defined under Section 2(f) which
covers arbitration relating to disputes where one of the parties is a national
or habitual resident of a country other than India or a body corporate B
incorporated outside India or an association of body of individuals whose
management and control is exercised in a country other than India or a
Government of a foreign country. In such cases, parties may agree to
have an arbitrator of any nationality, to any language to be used in
arbitration proceedings, to any place of arbitration. Section 28(b) permits
Arbitral Tribunal to decide disputes in accordance with rules of law C
applicable to the substance of the dispute as agreed by the parties. The
arbitrator has to give equal opportunity to the parties to present their
case (Section 18). Parties can agree on the procedure to be followed
(Section 19). Section 34(2)(a)(iii) provides that an award may be set
aside, inter-alia, on the ground that the party was unable to present its D
case in the arbitration proceedings. Procedure for presenting case of a
party before the arbitrator may be governed by agreement or by the
procedural rules.
28. Shri Dushyant Dave referred to rules of certain Arbitration
Institutions to the effect that the parties are free to be represented by an E
outside lawyer. It was submitted that by way of Convention in international
commercial arbitrations, there cannot be any compulsion to engage only
a local lawyer. Section 48(1)(b) of the Arbitration Act provides that
enforcement of a foreign award can be refused if the parties were unable
to present their case. The New York Convention Awards are governed
by the First Schedule to the Act. Article-II provides for recognition of F
an arbitration agreement between the parties. Article-V(1)(b) provides
that if the party against whom the award is invoked was not given proper
notice or could not present his case, the award cannot be enforced.
Section 53 of the Arbitration Act refers to Geneva Convention Awards
which is regulated by the Second Schedule to the Act containing similar G
provisions.
29. Mr. Dave submitted that the Special Leave Petition arising
out of the Delhi High Court order is on the question whether London
Court of International Arbitration could use the expression “COURT”
H
262 SUPREME COURT REPORTS [2018] 3 S.C.R.

A had become infructuous as the respondent had closed its working in
India. He, however, referred the following:
I) Handbook of ICC Arbitration – Commentary, Precedents,
Materials – Second Edition (Michael W. Buhler and Thomas
H. Webster)
B Article 21(4): “The parties may appear in person or through
duly authorized representatives. In addition, they may be
assisted by advisers.”
The authors’ comment is as follows:

C “In an ICC arbitration, parties have the right to be represented
by the persons of their choice. A distinction should however
be made between “authorized representatives” and
“advisors”. Usually, the parties have attorneys represent them
in the arbitration. Thus, an attorney may have both
capacities, but this may not always be the case. As an adviser,
D he or she would not need a power of attorney. On the other
hand, as a representative of a party, he or she might need a
power of attorney. In arbitration. The major centres of
arbitration do not appear to have restrictions on the right of
lawyers from other countries to argue cases in those countries,
E with the possible exception of California.”
The footnote 31 is as follows:
“See Birbower, Montabano, Condon & Frank, P.C. v. The
Superior Court of Santa Clara, 949 P.2d 1 (Cal. 1998); see
also Holtzmann and Donovan, “United States Country
F Report” in ICCA Handbook, Supp. 28 (Paulsson edn, 1999).
The California Rules of Court were modified in 2004 in order
to permit any US qualified lawyer to represent a party in an
arbitration (r.966). However, it remains unclear whether
lawyers admitted to foreign bars can represent parties in
national or international arbitration.”
G
II) Arbitration of Commercial Disputes – International and
English Law and Practice (Andrew Tweeddale and Keren
Tweeddale).

H
BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS. 263
[ADARSH KUMAR GOEL, J.]

Representation of the parties A
10.15. The right to legal representation at trial has existed
both in the common law and in international treaties for
centuries5. However, the right to legal representation is not
absolute. The parties may agree to dispense with legal
representation 6. Furthermore, some rules of arbitration B
prohibit the use of legal representation 7. In international
commercial arbitrations it is generally accepted that the parties
may choose their own advocate without necessarily choosing
one qualified at the seat of the arbitration88 . However, in a
few recent cases that principle has been challenged9.”
C
5
See, for example, art 42 of the Statute of the International Court of Justice which
states: ‘1. The parties shall be represented by agents. 2. They may have the assistance
of counsel or advocates before the Court. 3. The agents, counsel, and advocates of
parties before the Court shall enjoy the privileges and immunities necessary to the
independent exercise of their duties.’ See also art 37 of the Hague Convention 1899
which states: ‘The parties have the right to appoint delegates or special agents to D
attend the Tribunal, for the purpose of serving as intermediaries between them and the
Tribunal. They are further authorized to retain, for the defense of their rights and
interests before the Tribunal, counsel or advocates appointed by them for this purpose.’
6
Henry Bath & Son Ltd. v. Birgby Products [1962] Lloyd’s Rep 389; and see also the
English Arbitration Act 1996, s 36.
7
The arbitration rules of the Australian Football league, for example, limit legal
representation. E
8
See, for example, In the matter of an Arbitration between Lawler, Matusky and Skelly,
Engineers and the Attorney General of Barbados (No.320 of 1981) 22 August 1983
where the High Court of Barbados held that there was a ‘common law right of everyone
who is sui juris to appoint an agent for any purpose’. The court held that this included
the right to appoint a representative to appear as advocate on a party’s behalf in a
commercial arbitration. F
9
In the matter of an Arbitration between Builders Federal (Hong Kong) Ltd. and
Joseph Gartner & Co., and Turner (East Asia) Pte Ltd (No. 90 of 1987) (1988) 2 MLJ
280 the Malaysian Judicial Commissioner Chan Sek Keong ruled that the respondents,
who were a foreign company, could not select a counsel from their own country because
Singapore’s Legal Profession Act operated as a bar to foreign lawyers from representing
their clients in international arbitrations in Singapore. However, in June 2004 Singapore
finally amended its Legal Profession Act to eliminate this restriction on representation G
by foreign lawyers in arbitrations in Singapore. See also Birbrower, Montabano, Condon
& Frank v. Superior Court of Santa Clara County, 1998 Cal LEXIS 2, 1998 WL 1346
(Cal 1/5/98) where the court held that a New York lawyer representing a client in a
Californian arbitration was not qualified to act for his client because he was not called
to the Californian bar and therefore not entitled to recover his fees. The court, however,
stated that this principle would not apply to an international commercial arbitration.
H
264 SUPREME COURT REPORTS [2018] 3 S.C.R.

A III) Redfern and Hunter on International Arbitration

“In general, the parties may also be represented by engineers,
or commercial men, for the purpose of putting forward the
oral submissions, and even for the examination of witnesses.
It is not uncommon, where a case involves technical issues,
B for an engineer or other professional man to be part of the
team of advocates representing a party at a hearing, although
it is more usual for such technical experts to be called as
witnesses in order that their opinions and submissions may
be tested by cross-examination. However, it may sometimes
C be convenient and save time if technical experts address the
arbitral tribunal directly as party representatives10.

The Supreme Court of California held in 1998 that
representing a party in an arbitration without its seat in
California was ‘engaging in the practice of law’ in that state.
D It followed that a New York lawyer, not a member of the
Californian Bar, was not qualified to represent his client in a
Californian arbitration; and was thus unable to recover his
fee when he sued for it11. Fortunately the court stated that
the rule did not apply in international arbitration. IN England
E there is not, and never has been, any danger of a similar
situation arising12. A party to an arbitration may, in theory,
be represented by his plumber, his dentist, or anyone else of
his choosing, although the choice usually falls on a lawyer
or specialist claims consultant in the relevant industry 13.”

F
10
Both the UNCITRAL RULES (Art4) and the LCIA Rules (Art18) make it
clear that parties are entitled to be represented by non-lawyers.
11
Birbrower, Montabane, Condon Frank v. The Superior Court of Santa
Clara County, 1998 Cal Lexis2; 1998 WL 1346 (Cal 1/5/98)
G 12
i.e. that only a member of the local bar should be entitled to represent a party
in a judicial or quasi-judicial proceeding.
13
English Arbitration Act, 1996, s 36. This reaffirms the previous common law
position.

H
BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS. 265
[ADARSH KUMAR GOEL, J.]

IV) LONDON COURT OF INTERNATIONAL ARBITRATION A
(LCIA) RULES (2014)

Article 18 – Legal Representatives

“18.1 Any party may be represented in the arbitration by
one or more authorized legal representatives appearing by B
name before the Arbitral Tribunal.

18.2 Until the Arbitral Tribunal’s formation, the Registrar may
request from any party: (i) written proof of the authority
granted by that party to any legal representative designated
C
in its Request or Response; and (ii) written confirmation of
the names and addresses of all such party’s legal
representatives in the arbitration. After its formation, at any
time, the arbitral Tribunal may order any party to provide
similar proof or confirmation in any form considers
appropriate.” D

V) CHINA INTERNATIONAL ECONOMIC AND TRADE
ARBITRATION COMMISSIN (CIETAC) ARBITRATION
RULES.

Article 22 - Representation E

“A party may be represented by its authorized Chinese and/
or foreign representative(s) in handling matters relating to
the arbitration. In such a case, a Power of Attorney shall be
forwarded to the Arbitration Court by the party or its
F
authorized representative(s).”

VI) ARBITRATION RULES, MEDIATION RULES OF
INTERNATIONAL CHAMBER OF COMMERCE.

ARTICLE 26 – Hearings G
“4. The parties may appear in person or through duly
authorized representatives. In addition, they may be assisted
by advisers.”

H
266 SUPREME COURT REPORTS [2018] 3 S.C.R.

A VII) COMMERCIAL ARBITRATION RULES AND
MEDIATION PROCEDURES OF AMERICAN
ARBITRATION ASSOCIATION
R-26. Representation
“Any party may participate without representation (pro se),
B or by counsel or any other representative of the party’s
choosing, unless such choice is prohibited by applicable law.
A party intending to be so represented shall notify the other
party and the AAA of the name, telephone number and
address, and email address if available, of the representative
C at least seven calendar days prior to the date set for the
hearing at which that person is first to appear. When such a
representative initiates an arbitration or responds for a party,
notice is deemed to have been given.”
VIII) ARBITRATION RULES OF THE SINGAPORE
D INTERNATIONAL ARBITRATION CENTRE (SIAC)
Party Representatives
“23.1 Any party may be represented by legal practitioners
or any other authorized representatives. The Registrar and/
or the Tribunal may require proof of authority of any party
E representatives.
23.2 After the constitution of the Tribunal, any change
or addition by a party to its representatives shall be promptly
communicated in writing to the parties, the Tribunal and the
Registrar.”
F
IX) RULES OF I NTERNATIONAL COMMERCIAL
ARBITRATION BY INDIAN COUNCIL OF
ARBITRATION
20. Party Representation and assistance
G “At the hearing, a party shall be entitled to appear through
Attorney, Advocate or a duly authorized Advisor or
Representative or in person, subject to such proof of authority
to the satisfaction of the Registrar or the Tribunal.”

H
BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS. 267
[ADARSH KUMAR GOEL, J.]

30. Shri C.U. Singh, learned senior counsel, by way of rejoinder, A
opposed the submissions of learned counsel appearing for the foreign
law firms. He submitted that the stand of the Central Government finally
was to support the stand of the Bar Council of India. The argument that
participation of foreign lawyers will be in the interest of the country was
raised by the foreign law firms only as shown from para 51 of the Madras
B
High Court judgment. He submitted that the arbitrator was also an
‘authority’ before whom only advocates enrolled in India alone could
appear. The arbitrator could record evidence and summon witnesses
through Court(Section 27). Rules of Arbitration Institutions have to be in
conformity with the law of the land. He also submitted that the rules
framed by the Bar Council of India under Section 49 define the practice C
of law so as to cover even giving of opinion.
31. Shri Singh further pointed out that Ethics for the profession as
applicable in India are different from the Ethics applicable in other
countries. In this regard, it was submitted that Rule 36 in Part VI, Chapter
II of the BCI Rules prohibits direct or indirect advertising by advocates, D
or solicitation by any means whatsoever. Rule 18 bars an advocate
from fomenting litigation. In Bar Council of Maharashtra versus M.V.
Dabholkar14, this Court held that advertising was a serious professional
misconduct for an advocate. As against this, in USA Rule 7.3 of the
American Bar Association Rules bars only in-person or live telephonic
solicitation of clients, but expressly permits lawyer-to-lawyer solicitation, E
as well as client solicitation by written, recorded or electronic
communication, unless the target of solicitation has made known to the
lawyer his desire not to be solicited, or the solicitation involved coercion,
duress or harassment. The US Supreme Court, inter alia, in Zauderer
versus Office of Disciplinary Counsel 15 and in Shapero versus F
Kentucky Bar Association16 struck down disciplinary actions against
lawyers for soliciting clients through print advertisements or hoardings.
In UK, Solicitors Regulation Authority(SRA) is a regulatory body
established under the Legal Services Act, 2007. Chapter 8 of the SRA
Handbook permits publicity of the law firm but prohibits solicitations.
G
32. In India, with regard to Contingency fees, Rule 20 in Part VI,
Chapter II of the BCI Rules bars an advocate from stipulating a fee
contingent on the results of the litigation or from agreeing to share the
14
(1976) 2 SCC 291
15
471 US 626 (1985)
16
486 US 466 H
268 SUPREME COURT REPORTS [2018] 3 S.C.R.

A proceeds thereof. Rule 21 prohibits practices akin to champerty or
maintenance, and prohibits an advocate from buying or trafficking in or
stipulating or agreeing to receive any share or interest in an actionable
claim. In USA Rule 1.5 (c) of the ABA Rules permits lawyers to charge
contingency fees, except in certain specified cases like criminal defence,
etc. Fee-splitting arrangements between lawyers from different firms
B
are also permitted with some restrictions. In U.K., Section 58 of the
Courts and Legal Services Act, 1990 permits “conditional fee agreements”
except in criminal proceedings and family law matters and Section 58AA
permits “damages-based fee agreements”, all of which entitle legal
practitioners to a share of the “winnings”.
C 33. In India, there are no rules framed by the Bar Council on the
subject ‘sale of law practice’. In U.S.A., Rule 1.17 permits law firms or
lawyers having private practice to sell their practice including the goodwill.
In U.K., SRA Guidelines permit sale of practice as a going concern or
acquisition of a practice which is closing down.
D 34. In India, senior advocates are barred from interacting directly
with clients, and are not permitted to draft pleadings or affidavits,
correspond on behalf of clients, or to appear in court unassisted by an
advocate (Part VI, Chapter I of the Bar Council of India Rules). In
U.S.A., no such distinction or designations are made. In U.K., there
appear to be no restrictions on Queen’s Counsel (QCs) similar to the
E
ones imposed by the Bar Council in India. QCs are permitted to join law
firms as partners.
35. In India, funding of litigation by advocates is not explicitly
prohibited, but a conjoint reading of Rule 18 (fomenting litigation), Rule
20 (contingency fees), Rule 21 (share or interest in an actionable claim)
F and Rule 22 (participating in bids in execution, etc.) would strongly suggest
that advocates in India cannot fund litigation on behalf of their clients.
There appears to be no restriction on third parties (non-lawyers) funding
the litigation and getting repaid after the outcome of the litigation. In
U.S.A., lawyers are permitted to fund the entire litigation and take their
G fee as a percentage of the proceeds if they win the case. Third Party
Litigation Funding/Legal Financing agreements are not prohibited. In
U.K., Section 58B of the Courts and Legal Services Act, 1990 permits
litigation funding agreements between legal service providers and litigants
or clients, and also permits third party Litigation Funding or Legal
Financing agreements, whereby the third party can get a share of the
H damages or “winnings”.
BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS. 269
[ADARSH KUMAR GOEL, J.]

36. In India, partnerships with non-lawyers for conducting legal A
practice is not permitted. In U.K., Section 66 of the Courts and Legal
Services Act, 1990 expressly permits solicitors and barristers to enter
into partnerships with non-solicitors and non-barristers.
CONSIDERATION OF THE ISSUES
37. We have considered the rival submissions. Questions for B
consideration mainly arise out of directions in para 63 of the Madras
High Court judgment which have already been quoted in the beginning
of this judgment. viz. :
(i) Whether the expression ‘practise the profession of law’
includes only litigation practice or non-litigation practice also;
C
(ii) Whether such practice by foreign law firms or foreign lawyers
is permissible without fulfilling the requirements of Advocates
Act and the Bar Council of India Rules;
(iii) If not, whether there is a bar for the said law firms or lawyers
to visit India on ‘fly in and fly out’ basis for giving legal advice
regarding foreign law on diverse international legal issues; D
(iv) Whether there is no bar to foreign law firms and lawyers
from conducting arbitration proceedings and disputes arising
out of contracts relating to international commercial
arbitration;
(v) Whether BPO companies providing integrated services are E
not covered by the Advocates Act or the Bar Council of
India rules.
RE : (i)
38. In Pravin C. Shah versus K.A. Mohd. Ali17, it was observed
that right to practice is genus of which right to appear and conduct cases F
is specie. It was observed:
“………The right of the advocate to practise envelopes a lot
of acts to be performed by him in discharge of his professional
duties. Apart form appearing in the courts he can be consulted
by his clients, he can give his legal opinion whenever sought G
for, he can draft instruments, pleadings, affidavits or any
other documents, he can participate in any conference
involving legal discussions etc. ……”

17
(2001) 8 SCC 650
H
270 SUPREME COURT REPORTS [2018] 3 S.C.R.

A In Ex. Capt. Harish Uppal versus Union of India18, same view
was reiterated.
39. Ethics of the legal profession apply not only when an advocate
appears before the Court. The same also apply to regulate practice outside
the Court. Adhering to such Ethics is integral to the administration of
B justice. The professional standards laid down from time to time are
required to be followed. Thus, we uphold the view that practice of law
includes litigation as well as non litigation.
RE : (ii)
40. We have already held that practicing of law includes not only
C appearance in courts but also giving of opinion, drafting of instruments,
participation in conferences involving legal discussion. These are parts
of non-litigation practice which is part of practice of law. Scheme in
Chapter-IV of the Advocates Act makes it clear that advocates enrolled
with the Bar Council alone are entitled to practice law, except as otherwise
provided in any other law. All others can appear only with the permission
D of the court, authority or person before whom the proceedings are pending.
Regulatory mechanism for conduct of advocates applies to non-litigation
work also. The prohibition applicable to any person in India, other than
advocate enrolled under the Advocates Act, certainly applies to any
foreigner also.
E RE : (iii)
41. Visit of any foreign lawyer on fly in and fly out basis may
amount to practice of law if it is on regular basis. A casual visit for
giving advice may not be covered by the expression ‘practice’. Whether
a particular visit is casual or frequent so as to amount to practice is a
F question of fact to be determined from situation to situation. Bar Council
of India or Union of India are at liberty to make appropriate rules in this
regard. We may, however, make it clear that the contention that the
Advocates Act applies only if a person is practicing Indian law cannot
be accepted. Conversely, plea that a foreign lawyer is entitled to practice
foreign law in India without subjecting himself to the regulatory
G mechanism of the Bar Council of India Rules can also be not accepted.
We do not find any merit in the contention that the Advocates Act does
not deal with companies or firms and only individuals. If prohibition applies
to an individual, it equally applies to group of individuals or juridical persons.

18
(2003) 2 SCC 45
H
BAR COUNCIL OF INDIA v. A.K. BALALJI AND ORS. 271
[ADARSH KUMAR GOEL, J.]

RE: (iv) A
42. It is not possible to hold that there is absolutely no bar to a
foreign lawyer for conducting arbitrations in India. If the matter is
governed by particular rules of an institution or if the matter otherwise
falls under Section 32 or 33, there is no bar to conduct such proceedings
in prescribed manner. If the matter is governed by an international B
commercial arbitration agreement, conduct of proceedings may fall under
Section 32 or 33 read with the provisions of the Arbitration Act. Even in
such cases, Code of Conduct, if any, applicable to the legal profession in
India has to be followed. It is for the Bar Council of India or Central
Government to make a specific provision in this regard, if considered
appropriate. C

RE: (v)
43. The BPO companies providing range of customized and
integrated services and functions to its customers may not violate the
provisions of the Advocates Act, only if the activities in pith and substance D
do not amount to practice of law. The manner in which they are styled
may not be conclusive. As already explained, if their services do not
directly or indirectly amount to practice of law, the Advocates Act may
not apply. This is a matter which may have to be dealt with on case to
case basis having regard to a fact situation.
E
44. In view of above, we uphold the view of the Bombay High
Court and Madras High Court in para 63 (i) of the judgment to the effect
that foreign law firms/companies or foreign lawyers cannot practice
profession of law in India either in the litigation or in non-litigation side.
We, however, modify the direction of the Madras High Court in Para
63(ii) that there was no bar for the foreign law firms or foreign lawyers F
to visit 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.
We hold that the expression “fly in and fly out” will only cover a casual
visit not amounting to “practice”. In case of a dispute whether a foreign G
lawyer was limiting himself to “fly in and fly out” on casual basis for the
purpose of giving legal advice to their clients in India regarding foreign
law or their own system of law and on diverse international legal issues
or whether in substance he was doing practice which is prohibited can
be determined by the Bar Council of India. However, the Bar Council
H
272 SUPREME COURT REPORTS [2018] 3 S.C.R.

A of India or Union of India will be at liberty to make appropriate Rules in
this regard including extending Code of Ethics being applicable even to
such cases.
45. We also modify the direction in Para 63 (iii) that foreign lawyers
cannot be debarred from coming to India to conduct arbitration
B proceedings in respect of disputes arising out of a contract relating to
international commercial arbitration. We hold that there is no absolute
right of the foreign lawyer to conduct arbitration proceedings in respect
of disputes arising out of a contract relating to international commercial
arbitration. If the Rules of Institutional Arbitration apply or the matter
is covered by the provisions of the Arbitration Act, foreign lawyers may
C not be debarred from conducting arbitration proceedings arising out of
international commercial arbitration in view of Sections 32 and 33 of the
Advocates Act. However, they will be governed by code of conduct
applicable to the legal profession in India. Bar Council of India or the
Union of India are at liberty to frame rules in this regard.
D 46. We also modify the direction of the Madras High Court in
Para 63(iv) that the B.P.O. Companies providing wide range of
customized 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
E of the Advocates Act, 1961 or the Bar Council of India Rules. We hold
that mere label of such services cannot be treated as conclusive. If in
pith and substance the services amount to practice of law, the provisions
of the Advocates Act will apply and foreign law firms or foreign lawyers
will not be allowed to do so.

F The Civil Appeals are disposed of accordingly.

Kalpana K. Tripathy Appeals disposed of.

G

H