The Bar Council of India (BCI) on Tuesday called for views of Bar Councils across the country on a plea by a Korean national — who obtained a law degree in India — to let him practice in India.
The plea by the Korean national in Delhi High Court challenged BCI’s 2020 decision of refusing to consider him as eligible for enrolment as an advocate on the rolls of Bar Council of Delhi under the provisions of Advocates Act.
The petitioner stated 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 was studied law in India should be allowed to practice in India.
In a letter by the Bar Council of India addressed to secretaries of State Bar Councils, it was stated that from Korean statutes, it could be inferred that a law graduate who is duly qualified in India must obtain a Juris Doctorate degree in Korea to be eligible to sit for the South Korean National Bar Examination.
The letter further stated that in a meeting of the council, it was observed that section 24(1) of the Act uses the word “may” and not “shall”. This, according to BCI, makes the proviso directory and therefore there is no mandate on BCI to admit a national of another country as an advocate on a state bar roll.
“It is at the discretion of the Bar Council to admit a foreign national into State roll or not and it can be denied by giving sufficient reasons, merely the reason that citizen of India who is duly qualified is permitted to practice law in the other country shall not bind Bar Council to admit any foreign or non-citizen into the Indian advocates roll,” the letter added.
The letter also stated that as per the council, the words “duly qualified”, as per other provisions of the Act, would mean an Indian citizen who has obtained an Indian law degree and is duly qualified in that respect and he on basis of such degree should be permitted to practice law in South Korea, which was not the case.
On the other hand, it stated, if the interpretation of duly qualified is read as an Indian citizen who is duly qualified by way of obtaining a law degree from Korea, even then, the use of word “may” makes is discretionary for BCI to admit a foreign national into an Indian Bar even if he has obtained a law degree from an Indian University.
It also stated that in the meeting, section 47 (Reciprocity) of the Advocates Act was also discussed and it was observed that an Indian Law degree holder is not entitled to practice law in South Korea on the basis of their LLB degree.
“The basis of reciprocity with any foreign Country is that an Indian Law Degree holder should be entitled to practice law in that Country and then similarly India could think of allowing that foreign national holding a foreign degree to practice law in India,” the letter said.
BCI also apprehended that if the petitioner was enrolled as an advocate and engaged in professional misconduct, no action could be taken against him if he left Indian territory and went beyond India’s jurisdiction.
Furthermore, it apprehended that if the petitioner was enrolled, it would pave the way for entry of people of foreign origin into the Indian Bar, which was unprecedented.
“This will open the floodgates to the Indian Bar, and soon citizens of Nepal, Sri Lanka, Nigeria, Bangladesh, Bhutan etc. may be seen entering the Indian bar, which may not go down well with Advocates who are Indian citizens, whose rights, privileges and interests are to be safeguarded by the Bar Council of India as per section 7(1)d of the Advocates Act, 1961,”
Considering that the issue required wider deliberation and discussion with all stakeholders, the BCI directed both the State Bar Councils and Bar Associations across the country to furnish their views and opinions on the issue after holding joint meetings in phases.
Since the matter before Delhi High Court is listed for 21 September 2022, it directed the State Bar Councils send their findings on or before 17 September 2022 as an affidavit in the regard has to be filed before the court.
Interestingly, during the hearing of the case before Delhi High Court on July 25, BCI had stated that, without it being understood or being treated as a precedent, has decided to accept and grant the prayer of the petitioner for being enrolled in the Bar Council of Delhi and sought three weeks time to frame and communicate appropriate directions to the Council. The same was noted by the Dehi High Court in its July 25 order.
Thereafter, when the matter came up for hearing on September 1, BCI Counsel had sought an adjournment.
The matter will now come up before the Delhi High Court on September 21.