Delhi High Court Quashes BCI's Decision Refusing Enrolment To South Korean Citizen As Advocate With BCD, Orders Processing Of Application
The Delhi High Court on Tuesday quashed the Bar Council of India’s decision refusing to consider a South Korean citizen as eligible for enrolment as an advocate with Bar Council of Delhi. The foreign national had moved to India with his parents at the age of 11 and lived here continuously till he graduated from NALSAR University in 2016.“The writ petition is allowed. The impugned order...
The Delhi High Court on Tuesday quashed the Bar Council of India’s decision refusing to consider a South Korean citizen as eligible for enrolment as an advocate with Bar Council of Delhi. The foreign national had moved to India with his parents at the age of 11 and lived here continuously till he graduated from NALSAR University in 2016.
“The writ petition is allowed. The impugned order dated 23.7.2020 is quashed. The Bar Council of India is directed to process the application of the petitioner forthwith in accordance with law,” Justice Yashwant Varma said while pronouncing the judgment today.
The court ruled that 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 are adopted in the foreign nation, the nationals of that country would clearly be entitled to seek enrolment in terms of the proviso to Section 24(1)(a) of the Advocates Act.
The petitioner Daeyoung Jung in the petition said that that he wishes to practice the profession of law in India so as to utilise his degree effectively. "The petitioner's law degree is his only qualification which, in the absence of an enrolment certificate by the respondents, cannot be utilized by the petitioner either in India or abroad to practice and build a career as a lawyer," Jung told the court.
Informing court that that he has been held ineligible only on the ground of nationality, Jung said he has been relegated to seeking temporary contractual employment, that too non-legal in nature. The petitioner is not able to utilize his degree to obtain stable employment to support his family, it was argued.
Jung argued that basic premise of the Impugned Order is incorrect as the BCI has failed to consider that there is no nationality-based restriction in practicing law in South Korea. "While the proviso to Section 24(1)(a) of the [Advocates] Act permits nationals of other countries to be enrolled as advocates on a State roll if their country of origin permits Indian citizens, who are otherwise qualified, to practice law in that country, the reasons set out in the Impugned Order render the provisions of the Act otiose," the plea said.
Contending that BCI has incorrectly concluded in the Impugned Order that there is no provision in the laws of the Republic of South Korea corresponding to the proviso to Section 24(1)(a) of the Act and that only such a provision would have fulfilled the requirement thereof, namely that “a national of any other country may be admitted as an advocate on a State roll, if citizens of India, duly qualified, are permitted to practise law in that other country”, Jung said BCI did not find that there is any nationality-based restriction on enrolling and practicing as an attorney-at-law in South Korea.
"Despite this, Respondent No. 1 has held that an identical provision as that existing under the Act is required. In this manner, Respondent No. 1 has confused the requirement of the proviso to Section 24(1)(a) to mean that there should be an identical provision in the laws of the concerned country, and rejected the Petitioner’s representations requesting for permission to be enrolled under the Act, despite the fact that the Petitioner fulfils the requirement of the proviso to Section 24(1)(a)," it was argued.
Jung also argued that the decision appears to be based on irrelevant considerations, namely that "(i) the Petitioner is a national of the Republic of Korea and has not applied for Indian citizenship despite having lived in India since childhood; and (ii) the Petitioner is a whole-time employee at the embassy of the Republic of Korea and is therefore not entitled to apply for enrolment as an advocate in terms of Rule 49, Chapter II of the Bar Council of India Rules".
The petitioner's nationality and non-application for Indian citizenship are irrelevant in view of the clear and unambiguous provisions of the Act, it was contended.
Justice Varma said the query of why he never applied for or pursued an application for grant of Indian citizenship was wholly immaterial and uncalled for. "It had absolutely no relevance for the purposes of considering his application for enrolment with the Bar. Equally irrelevant was the query posed by BCI relating to whether the competent authority in South Korea was willing to enter into a reciprocity agreement in terms of Section 47," said the court.
The bench also said Jung's prayer for enrolment was neither based on a claim of reciprocity between India and South Korea nor was it dependent upon the Parliament in South Korea adopting a provision identical to Section 24. The court also noted that Jung had addressed a very specific query to both the President, Korean Bar Association as well as the Ministry of Justice, South Korea on whether Indian nationals could enrol themselves with the Bar to practice law in South Korea.
"Responding to the same, the concerned authorities had clearly apprised the petitioner that in absence of a nationality bar, any interested individual could take the bar exam. 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 [ even though Section 24 contemplates no such explicit requirement] would not have warranted the rejection of Jung‟s application," said the court.
The court also said BCI clearly appears to have lost sight of the fact that Jung was not a “foreign lawyer” claiming a right to establish his own legal practice in India. "In fact, and to the contrary, the petitioner is a foreign national who holds a degree in law which is duly recognised under the Act and thus entitling him to seek enrolment. 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," said the court.
Title: Daeyoung Jung v. Bar Council of India & Anr.
Citation: 2023 LiveLaw (Del) 462