BCI Or State Bar Councils Cannot Debar Foreign Citizens From Joining Legal Profession In India If They Are Otherwise Qualified: Delhi HC
|While clarifying that the Advocates Act, 1961 does not completely oust foreign nationals from consideration for enrolment and the proviso to Section 24(1)(a) of the Advocates Act creates an exception for foreigners who may vie for enrolment, the Delhi High Court yesterday allowed a petition filed by a South Korean National who had sought permission to enroll as an advocate in the Bar Council of Delhi, India (BCD), and consequently prayed for quashing the Bar Council of India’s (BCI) decision refusing to consider him as eligible for the enrolment.
Highlighting that foreign nationals can be enrolled as advocates in India if citizens of India are also allowed to practice law in the country from where the foreign national hails, the Single-Judge Bench of Justice Yashwant Varma therefore observed that “Qualifications, disqualifications and other relevant provisions propounded in various provisions of the Korean law apply equally to South Koreans as well as Indian applicants clearly eliminating the discrimination concerns. In any case, no Korean statute was shown to raise a nationality bar disentitling an Indian citizen, otherwise qualified, from pursuing the legal profession. Therefore, the absence of an explicit provision corresponding to the Proviso to Section 24 would not have warranted the rejection of Jung’s application”.
Advocate Ashim Sood appeared for the Petitioner, whereas Advocate Preet Pal Singh appeared for the Respondent.
Going by the background of the case, the Petitioner (Daeyoung Jung), a South Korean national had obtained a law degree from an Indian Law University and sought enrolment in BCD. He had moved to India with his parents at the age of 11 and lived here continuously till he graduated from National Academy of Legal Studies and Research (NALSAR), Hyderabad in 2016. Arguing that his law degree is his only qualification which, in the absence of an enrolment certificate by the Respondents, cannot be utilized either in India or abroad to practice in law, the Petitioner alleged that he had been held ineligible only on the ground of nationality. After his enrolment was orally rejected by the BCD in 2019, he sent his representation to the BCI which too was rejected. Hence, present petition challenging the rejection of Petitioner’s representations by the Respondents for permission to get enrolled under the 1961 Act even though Petitioner fulfils the requirement of the proviso to Section 24(1)(a).
After considering the submission and the relevant provisions of the 1961 Act, the High Court observed that in the absence of a nationality restriction clause in a foreign nation, their citizens would be entitled to apply for enrolment, subject to their being compliant with the other parts of Section 24.
“As long as the right of the citizens of India who hold the requisite qualification to practice law in a foreign nation is preserved and no discriminatory measures adopted in the foreign nation, the nationals of the said country would clearly be entitled to seek enrolment in terms of the proviso to Section 24(1)(a). This, subject of course, to they being otherwise qualified to be enrolled,” added the Court.
While clarifying that foreign nationals are not per se barred from being considered for enrolment under Section 24 of the 1961 Act, the Bench highlighted that the Proviso to Section 24(1)(a) was not founded on the recognition of degrees by two competent statutory authorities but on the right of duly qualified citizens of India being granted the right to practice law in other jurisdictions alone.
“The Proviso speaks of citizens of India as distinguished from advocates. The Proviso does not prescribe that the right of a foreign national to seek enrolment is dependent upon an “advocate” being permitted to practice law in a foreign country. Similar is the position which comes to the fore when one views Section 47. Section 47(1) too speaks of “citizens of India” and not Indian advocates who may be entitled to practice the profession of law,” added the Bench.
In the backdrop of Section 47 of the Advocates Act, the High Court further emphasized that a subject of a foreign country becomes disentitled to practice the profession of law in India in a situation where the Union Government has found that the country to which that national belongs prevents citizens of India from either pursuing the legal profession or subjects them to unfair discrimination.
Highlighting that Section 35(3) of the Advocates Act empowered the respective Bar Councils to either reprimand an advocate, pass an order of suspension, or remove the name of an advocate from the state roll, the Bench observed that neither of those actions are dependent upon the physical presence of the foreign national in the country.
“Even if a foreign national were to choose not to attend or participate in the proceedings that may be drawn by the State Bar Council, it would always be open for that Council to proceed ex parte”, added the Bench.
The High Court observed that the BCI had clearly lost sight of the fact that the Petitioner was not a ‘foreign lawyer’ claiming a right to establish his own legal practice in India, and he was a foreign national who held a degree in law that was duly recognized under the Advocates Act and thus entitled him to seek enrolment.
Therefore, while criticizing the enquiry conducted by the BCI while passing its order denying the Petitioner’s request, the High Court set aside the BCI’s decision and ordered it to process the Petitioner’s application for enrolment.
Cause Title: Daeyoung Jung v. Bar Council of India [Neutral Citation: 2023: DHC: 3810]
Click here to read/download Judgment