RIGHT OF AN ADVOCATE TO PRACTICE LAW IN INDIA
Advocates Act, 1961 grants exclusive right to advocates to practice law. Section 29 provides that there shall be only one class of persons to practice law namely advocates. Section 30 empowers an advocate enrolled with state roll to practice before all courts including Supreme Court and Tribunals. Article 33 bars anyone except an advocate to practice law before any court, authority or person.
Right to practice includes appearance before court, consultation as well as drafting work.
An advocate has right to charge fee. Bar Council rules do not impose any limitation on fee charged by an advocate but such fee has to be consistent with standing of an advocate.
An advocate has right to represent any client including his relative. But an advocate cannot represent a client wherein he has pecuniary interest. An advocate also cannot represent a client wherein he may be called as witness.
An advocate has also right to audience in Court. An advocate while going to court, during proceedings and while returning from court is exempted from civil arrest.
RESTRICTIONS ON RIGHT TO RRACTICE
Right of an advocate to practice is not absolute. The Supreme Court in several judgments including Harish Uppal Vs Union of India AIR (2013) SC 739 has held that advocate’s right to appear and conduct cases in Court is not absolute.
Right to practice law is a statutory right as such Parliament has right to modify provisions regulating practice of Law. Bar Council of India has also been empowered under Advocates Act, 1961 to regulate practice of law.
Supreme Court and High Court under Section 34 and 52 respectively can also make rules for conducting orderly court proceedings. Limitations placed on right to practice of an advocate in form of special eligibility conditions in case of “Advocate -on-record “ and “senior advocate” in Supreme Court was challenged before the Supreme Court in Balraj Singh Malik Vs Supreme Court of India AIR 2012 Del 79. The Supreme Court dismissed the same on the ground that Section 30 has to be read with Section 52 of the Advocates Act which preserves the rule making power of the Supreme Court under Article 145.
RIGHT OF FOREIGN LAWYERS/FIRMS TO PRACTICE IN INDIA
Right of foreign lawyers/firms to practice in India was very restricted. The Bombay High Court in Lawyers Collective Vs Bar Council of India held that to practice profession of law under Section 29 of the Advocate’s Act, 1961 includes litigious as well as non-litigious matter as such provisions contained under AdvocateS Act, 1961 has to be followed. Only advocates enrolled with Bar Council of India are eligible to provide legal services.
The Supreme Court in Bar Council of India vs A K Balaji reiterated that right to practice includes right to appear before Court as well advisory functions. Advocates enrolled under Bar Council are only eligible to practice law. Visit of a foreign lawyer on fly in and fly out may amount to practice law if done on regular basis. Supreme Court further held that it is not possible to hold that there is absolutely no bar to a foreign lawyer for conducting arbitration in India. Services provided by BPO companies may not be covered under Advocates Act, if services in pith and substance does not amount to practice of law.
Bar Council of India has framed rules whereby law practice for foreign lawyers/firms have been opened up in field of foreign law, diverse international legal issues in non-litigious matters, and international arbitration matters.
Foreign lawyers/firms need not register with BCI if such lawyers/firms operate on fly in and fly out basis. In this case Foreign lawyers/firms cannot maintain office in India and such practice cannot be more than 60 days in a period of 12 months.
In other cases foreign lawyers/firms have to register with BCI for opening office in India. Such registration is given initially for a period of five years. Registered foreign lawyers/ firms can practice in non-litigious matters. Such foreign lawyers/Firms cannot appear before any Court/Tribunal. Such firms can work on transaction work/corporate work such as joint ventures, mergers and acquisitions, intellectual property matters, drafting of contracts and other related matters on reciprocal basis. They cannot work on conveyancing of property or title investigation or other similar work.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.