Lawyers' Collective: Right to 'Practice'
Talha Abdul Rahman
Best,
Talha
Law and Legal developments
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'Practice' of law under the Advocates Act: Does it include
non-litigation work?
Posted: 18 Dec 2009 02:00 AM PST
In this post, I had mentioned that the Bombay High Court has ruled
that even non-litigation practice would come within the purview of �practice
of law�; and that foreign firms could not be allowed to engage in
non-litigation practice or to open liaison offices in India. In this post, I
shall look at the decision in a little more depth.
On behalf of the petitioners, opposing the entry of foreign law firms,
it was contended that to carry on the profession of law even in
non-litigious matters, enrollment as advocates under the Advocates Act, 1961
was essential. Since the respondent foreign law firms were not so enrolled,
the permission granted to them to open offices was bad in law. Further, it
was argued that the 1961 Act constituted a complete code for regulating the
practice of the profession of law in India. �Practice of the profession of
law� includes, on an ordinary meaning, practice in litigious as well as
non-litigious matters. This is because the right to practice cannot be
limited to the right to physical appearances before Courts and Tribunals.
Reliance was placed on several foreign decisions; and also on the judgment
of the Supreme Court of India in Harish Uppal v. Union of India, (2003) 2
SCC 45. There, the Supreme Court had 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 from appearing in the courts he can be consulted
by his clients, he can give his legal opinion whenever sought for, he can
draft instruments, pleadings, affidavits or any other documents, he can
participate in any conference involving legal discussions, he can work in
any office or firm as a legal officer, he can appear for clients before an
arbitrator or arbitrators etc� The right to practise, no doubt, is the genus
of which the right to appear and conduct cases in the court may be a
specie.� A similar view has been expressed in Pravin Shah v. K.A. Md. Ali,
(2001) 8 SCC 650. Accordingly, it was contended that the right to practice
must include non-litigious practice too.
In accepting these arguments, the Court construed Section 29 of the
Advocates Act. That Section states, �29. Advocates to be the only recognised
class of persons entitled to practise law. - Subject to the provisions of
this Act and any rules made thereunder, there shall, as from the appointed
day, be only one class of persons entitled to practise the profession of
law, namely, advocates�� The Respondents had argued that the words �practice
the profession of law� in this Section must be read harmoniously with the
other Section. I particular, Section 33 states, �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 practise in any Court or before any authority
or person unless he is enrolled as an advocate under this Act��
The Respondents� argument was that Section 33 specifically states that
no person is entitled to practice �in any Court or before any authority or
person�� except in accordance with Section 29. They argued that this
essentially means that the restriction under Section 33 is only with respect
to litigious matters; and the words �practice the profession of law� in
Section 29 must be read in light of this specific meaning in Section 33. The
Court relied on the Statement of Objects and Reasons of the Act in order to
reject the argument of the Respondents. The main object of the Act,
according to the Statement of Objects and Reasons, is to establish an All
India Bar Council and a common roll of advocates, such that advocates on the
common roll have a right to practise in any part of the country and in any
Court, including the Supreme Court. The Court held that the legislative
intent was to deal with �practice in any part of the country� as well as
with �practice in any Court�. �Practice in any part of the country� must
therefore be held to cover non-litigious practice.
One other argument raised a very interesting point of constitutional
law. Mr. Seervai on behalf of White & Case contended, relying on a decision
of the Supreme Court in O.N. Mohindroo v. Bar Council, AIR 1968 SC 888, that
the Advocates Act was enacted by the Parliament under Entries 77 and 78 of
List I. These deal with matters pertaining to the constitution and
organization of the Supreme Court and the High Court, and with persons
entitled to practice before those Courts. Mr. Seervai argued, therefore,
that the Advocates Act can only extend to litigious practice before the High
Courts and the Supreme Court. For all other types of practice, there would
have to be a law traceable to Entry 26 in List III, which deals with legal,
medical and other professions. If this interpretation were not to be
followed, then the words �legal profession� in Entry 26 would be rendered
meaningless. He argued that the Supreme Court decision in Mohindroo was
categorical that the 1961 Act came under Entries 77 and 78 of List 1.
Therefore, it was not possible to say that the Act fell within the ambit of
Entry 26 of List III. Consequently, it must be interpreted as dealing only
with litigious practice before the High Courts and the Supreme Courts. The
Court reasoned on this point, �It is true that the Apex Court in the above
case has held that 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 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, the Parliament under entry 77 & 78 in List I
of the Seventh Schedule to make legislation only in respect of the advocates
practising 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, 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��
This reasoning may perhaps not be entirely correct. Effectively the
Court appears to have begged the question by saying �If the argument is
accepted, then the Act will have to be confined to litigious practice. But
the Act is not confined to litigious practice; hence the argument must be
rejected.�
The argument raised was more to the effect that (1) the Supreme Court
has expressly held that the law was under Entries 77 and 78 of List I, and
(2) Consequently, as a matter of interpretation, it must be interpreted as
being within the scope of those entries and none else. In order to counter
this, the Court could have held either that (1) the Supreme Court�s decision
does not mean that the law cannot be also traced to any other entries �
�ragbag� legislation traceable to more than one entry is permitted; and/or
(2) in any case, even with the extended meaning of �practice�, the Act would
in pith and substance be under Entries 77 and 78.
I will discuss more on this and also on the other issue of the
interrelation of Section 29 and 33 subsequently.
Foreign law firms and the 'practice' of law: Bombay High Court
judgment
Posted: 18 Dec 2009 12:31 AM PST
The Bombay High Court (Swatanter Kumar C.J. and J.P. Devdhar J.) has
ruled yesterday that foreign law firms are not eligible to practice law in
India. Furthermore, the drafting of opinions on legal matters amounts to
practice of law. Foreign law firms are not entitled to open liaison offices
in India. The case is Lawyers Collective v. Bar Council of India and Others,
Writ Petition No. 1526/1995, judgment dated 16th December 2009 (per Devdhar
J. for the Bench). The case can be downloaded here, along with a summary.
The issue before the Court was as follows:
�� whether the permissions granted by the Reserve Bank of India to the
respondent Nos.12 to 14 foreign law firms to establish their place of
business in India (liaison office) under Section 29 of the Foreign Exchange
Regulation Act, 1973 are legal and valid? Secondly, assuming such
permissions are valid, whether these foreign law firms could carry on their
liaison activities in India only on being enrolled as advocates under the
Advocates Act, 1961? To be specific, the question is, whether practising in
non litigious matters amounts to �practising the profession of law� under
section 29 of the Advocates Act, 1961?�
Respondents 12-14 were White & Case, Chadbourne & Park, and Ashurst
Morris Crisp respectively. The Court answered the issues thus:
�� 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 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��
A detailed post will follow shortly. More details are available in
various news reports. Some other links discussing the judgment are here and
here.
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University of Oxford (2009)
Nalsar University of Law, Hyderabad (2008)