When Indian Citizens' Right To Practice Law In Foreign Nation Is Preserved, Nationals Of That Country Also Entitled To Seek Enrolment Here: Delhi HC
Observing that foreign nationals are not per se barred from being considered for enrolment on a State roll under Section 24 of the Advocates Act, the Delhi High Court has directed the Bar Council of India to process a South Korean national's application for enrolment forthwith in accordance with law.Section 24 stipulates various conditions to be fulfilled by a person who intends to be an...
Observing that foreign nationals are not per se barred from being considered for enrolment on a State roll under Section 24 of the Advocates Act, the Delhi High Court has directed the Bar Council of India to process a South Korean national's application for enrolment forthwith in accordance with law.
Section 24 stipulates various conditions to be fulfilled by a person who intends to be an advocate on a State Roll. The proviso to Section 24(1)(a) however adds that a foreign national may be admitted as an advocate on a State roll, if the citizens of India are permitted to practise law in the foreign country.
Analyzing the provision, Justice Yashwant Varma said:
"The position which emerges is while duly qualified citizens of India are undoubtedly entitled to apply for enrolment, the right of foreign nationals is made contingent upon the State Bar Council being satisfied that Indian nationals are conferred an identical right to pursue the legal profession in that country. In the absence of a nationality restriction clause being found to exist in a foreign nation, its citizens would be entitled in law to apply for enrolment subject of course to them being compliant with the other parts of Section 24."
The court said that the Proviso does not completely oust foreign nationals and creates an exception to a person seeking enrolment being a citizen of India.
“It essentially speaks of categories of persons who, though not Indian nationals, may vie for enrolment. It is to that category of foreign nationals that the Proviso speaks. This thus leads the Court to the irresistible conclusion that foreign nationals are not per se barred from being considered for enrolment under Section 24 of the Act,” the court said.
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), said the court.
"This, subject of course, to they being otherwise qualified to be enrolled," it added.
The court also said that the Proviso to Section 24(1)(a) is not founded on the recognition of degrees by two competent statutory authorities but on the right of duly qualified citizens of India being granted the right to practise law in other jurisdictions alone.
The court also said that the Proviso speaks of “citizens of India”, as distinct from an “advocate”, who if duly qualified is permitted to practice law in any other foreign nation.
“It must be noted that the Proviso speaks of citizens of India as distinguished from advocates. The Proviso does not prescribe that the right of a foreign national to seek enrolment is dependent upon an “advocate” being permitted to practice law in a foreign country. Similar is the position which comes to the fore when one views Section 47. Section 47(1) too speaks of “citizens of India” and not Indian advocates who may be entitled to practice the profession of law,” Justice Varma said.
Emphasizing that the Proviso does not speak of an “advocates duly qualified” but of “citizens of India duly qualified”, the court said that the expression “duly qualified” is intended to mean an Indian citizen holding a qualification which enables him to practise the law in foreign nations.
Justice Varma made the observations while quashing the BCI's decision refusing to consider the 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.
“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,” the court said while allowing the plea.
The court also noted that Section 7A (Registration of overseas citizens of India) of the Citizenship Act also includes a child or grandchild or great grandchild of foreign nationals who would fall within the ambit of clauses a(i), (ii) and (iii).
“The categories who may fall within Section 7A(a)(iv) or for that matter clauses (b), (c) and (d) of Section 7A are also recognised as being eligible to pursue the legal profession in India subject of course to they being eligible under the Act. The aforesaid categories of individuals too would in essence be foreign nationals,” the court said.
Title: Daeyoung Jung v. Bar Council of India & Anr.
Citation: 2023 LiveLaw (Del) 462