BCI, State Bar Council has no authority to debar foreign citizens from practicing law in India: Delhi High Court

The Delhi High Court held on Tuesday 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 [Daeyoung Jung v. Bar Council of India & Anr]..Justice Yashwant Varma said 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.“To put it in another way, 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,” the judgment said..The Court held 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..In a detailed judgment, the Bench further said that the Bar Council of India (BCI) or the State Bar Councils do not have any authority to debar citizens of a foreign country from joining the legal profession, if they are otherwise qualified.“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. Such nations have to be duly identified by the Union Government upon due enquiry and on it being satisfied that such a bar needs to be put in place, a notification to that effect issued in terms of Section 47(1).”The Court added that Section 47 of the Advocates Act is based on the principle of reciprocity amongst nation-states. Further, Section 47(1) is a power vested exclusively in the Central government and thus not a subject in respect of which either the BCI or a State Bar Council may exercise jurisdiction..The Court's findings came in a judgment in which it directed the BCI to process a Korean national’s application for enrolment as an advocate with the Bar Council of Delhi (BCD).The petitioner, Daeyoung Jung had approached the BCD first for enrolment, but was rejected. He then sent a representation to the BCI, which rejected the same.Susbequently, he approached the High Court stating that he completed his law degree from National Academy of Legal Studies and Research (NALSAR) Hyderabad, and therefore, the BCI's decision refusing to consider him as eligible for enrolment as an advocate on the rolls of the BCD, was wrong.It was his case that an Indian national who obtains a law degree in Korea is entitled to practice in Korea, and therefore, as per Section 24 of Advocates Act, a Korean national who has studied law in India should be allowed to practice in India..After considering the case, the Bench said that Jung is not asserting a right to enrolment based on a qualification obtained outside India from a foreign university. It also noted that Korean authorities have already said that there is no nationality bar in their country and any interested individual can take the bar exams.Justice Varma criticised the enquiry conducted by the BCI while passing its order denying Jung’s request. He said that the query about whether Jung applied for grant of Indian citizenship was wholly immaterial and uncalled for.The Court rejected BCI's argument that there may be practical issues which would arise in case disciplinary action were to be initiated against foreign nationals who enrolled, because they may or may not choose to remain in the country during those proceedings.The argument that Jung’s enrolment would open the floodgates for foreign lawyers entering India was also rejected by the Court. Justice Varma stated that the petitioner was not a “foreign lawyer" claiming a right to establish his own legal practice in India."In any case, the perceived threat and apprehension, even if it were assumed to be genuine, well founded and germane, would not detract from the right of the petitioner to pursue his claim for enrolment if otherwise permissible under the statute as it stands today.”.Finally, the Court set aside the BCI’s decision and ordered it to process Jung’s application for enrolment..Advocates Ashim Sood, Senu Nizar, Ekansh Gupta, Velpula Audityaa, Reaa Mehta, Kuberinder Bajaj, Payal Chandra and Rhythm Buari appeared for the petitioner.BCI was represented through Advocates Preet Pal Singh, Saurabh Sharma and Shivam Sachdeva.Advocate Ajay Kumar Agarwal represented the Bar Council of Delhi. .[Read Judgement]