Delhi HC Allows Foreign Nationals to Practice Law in India

Date: May 30, 2023

In a groundbreaking ruling, the Delhi HC has granted foreign nationals the right to practice law in the country. The decision, rendered by a bench comprising Justice Yashwant Varma, marks a significant shift in the legal landscape and opens doors for global legal professionals to contribute to the Indian legal system.

The judgment, which centers around the case of Jung, a South Korean national holding a law degree from NALSAR, has far-reaching implications for the legal profession in India. The court examined the provisions of Section 24(1)(a) and Section 47 of the Advocates Act, 1961, along with relevant rules and notifications, to arrive at its verdict.

In a detailed analysis, the court emphasized that the right of foreign nationals to seek enrolment and practice law in India should be evaluated based on the principle of reciprocity. The focus of the inquiry should be on whether Indian citizens are granted the right to practice law in the foreign national's home country, rather than the recognition of degrees or qualifications.

The court clarified that the Proviso to Section 24(1)(a) and Section 47 of the Advocates Act both aim to protect the rights of Indian citizens to practice law abroad. As long as Indian citizens are not prevented from practicing law or subjected to unfair discrimination in a foreign jurisdiction, foreign nationals should be entitled to seek enrolment in India if they meet the necessary qualifications.

The judgment also highlighted the distinction between "advocate" and "citizen of India" within the provisions of the Advocates Act. While a citizen of India becomes an advocate upon enrollment with a Bar Council, the phrase "duly qualified" in the Proviso to Section 24(1)(a) refers to an Indian citizen holding a qualification that allows them to practice law in foreign countries.

The court firmly rejected the argument put forth by the Bar Council of India (BCI) that foreign nationals could only seek enrollment if Indian advocates were permitted to practice law in their respective countries. It emphasized that the power to recognize foreign degrees falls under Section 47(2) of the Act and is a separate matter entirely. The absence of an explicit provision in the foreign jurisdiction corresponding to the Proviso to Section 24 does not warrant the rejection of an application for enrollment.

Furthermore, the court criticized the BCI for raising concerns about a potential influx of foreign lawyers and the practical issues related to disciplinary proceedings against foreign nationals. It emphasized that disciplinary actions can be taken even in the absence of physical presence, and the punishments prescribed by the Act do not require the personal presence of the foreign national.

The judgment also clarified that the previous court decision in Balaji, which dealt with the establishment of foreign law firms in India, was not applicable to the present case. Balaji focused on foreign law firms and lawyers appearing before Indian courts and did not address the right of foreign nationals with recognized degrees to seek enrollment.

The court concluded by setting aside the BCI's order and directed the council to process Jung's application for enrollment in accordance with the law.

Date of Decision: May 30, 2023                 

DAEYOUNG JUNG vs BAR COUNCIL OF INDIA & ANR.           

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