In a significant ruling, the Delhi High Court declared on Tuesday that foreign nationals can now join the legal profession in India, provided that Indian citizens are granted the same opportunity to practice law in the foreign national’s home country. This decision was made in the case of Daeyoung Jung v. Bar Council of India & Anr.
According to Justice Yashwant Varma, the Advocates Act of 1961 does not completely exclude foreign nationals from being considered for enrollment as advocates. The proviso to Section 24(1)(a) of the Advocates Act provides an exception for foreigners who are eligible to apply for enrollment.
In simpler terms, as long as the citizens of India, who possess the necessary qualifications, are allowed to practice law in a foreign country without facing discrimination, then individuals from that foreign country are entitled to seek enrollment in India under the proviso to Section 24(1)(a). However, this is subject to the condition that they meet the other requirements for enrollment.
This ruling was stated in the judgment of the case, emphasizing the importance of preserving the rights of Indian citizens and ensuring non-discriminatory practices in the foreign country for foreign nationals to pursue enrollment.
In a detailed judgment, it was further stated by the Bench that the authority to debar citizens of a foreign country from joining the legal profession does not lie with the Bar Council of India (BCI) or the State Bar Councils, as long as they are otherwise qualified.
It was emphasized that a situation arises where a subject of a foreign country becomes disentitled to practice the profession of law in India only when it is determined by the Union Government that the country to which that national belongs prevents citizens of India from pursuing the legal profession or subjects them to unfair discrimination. The identification of such nations should be carried out by the Union Government through due enquiry, and upon being satisfied that such a restriction is necessary, a notification to that effect should be issued in terms of Section 47(1).
This ruling clarifies the conditions under which foreign nationals can practice law in India and establishes the role of the Union Government in identifying countries that impose restrictions or unfair treatment on Indian citizens.
Based on the principle of reciprocity among nation-states, the Court emphasized that Section 47 of the Advocates Act holds significant importance. Furthermore, it highlighted that Section 47(1) is a power exclusively vested in the Central government and does not fall under the jurisdiction of either the Bar Council of India (BCI) or a State Bar Council.
These conclusions were reached by the Court in a judgment that involved directing the BCI to process the application of a Korean national, Daeyoung Jung, for enrollment as an advocate with the Bar Council of Delhi (BCD).
Initially, Jung had approached the BCD seeking enrollment but his application was rejected. He then submitted a representation to the BCI, which also denied his request.
Subsequently, he approached the High Court, contending that he had completed his law degree from the National Academy of Legal Studies and Research (NALSAR) in Hyderabad. Therefore, he argued that the BCI’s decision to reject his eligibility for enrollment as an advocate with the BCD was incorrect.
Jung’s case was based on the assertion that an Indian national who obtains a law degree in Korea is entitled to practice law in Korea. Consequently, he argued that as per Section 24 of the Advocates Act, a Korean national who has studied law in India should be permitted to practice law in India.
After thorough consideration of the case, it was concluded by the Bench that Jung is not asserting a right to enrollment based on a qualification obtained from a foreign university outside India. Additionally, it was noted that the authorities in Korea have already confirmed that there is no nationality bar in their country, allowing any interested individual to take the bar exams.
The BCI’s order denying Jung’s request faced criticism from Justice Varma, who deemed the inquiry about Jung’s application for Indian citizenship irrelevant and unnecessary.
The argument presented by the BCI, suggesting that practical issues could arise when initiating disciplinary action against foreign nationals who enroll due to their potential presence or absence in the country during the proceedings, was dismissed by the Court.
Moreover, the Court rejected the argument that Jung’s enrollment would result in a flood of foreign lawyers entering India. Justice Varma stated that the petitioner does not fall under the category of a “foreign lawyer” claiming the right to establish their own legal practice in India.
“In any case, the perceived threat and apprehension, even if assumed to be genuine, well-founded, and relevant, would not diminish the petitioner’s right to pursue their claim for enrollment if permitted by the current statute.”
Consequently, the BCI’s decision was set aside by the Court, and they were ordered to process Jung’s application for enrollment.
The petitioner was represented by Advocates Ashim Sood, Senu Nizar, Ekansh Gupta, Velpula Audityaa, Reaa Mehta, Kuberinder Bajaj, Payal Chandra, and Rhythm Buari.
The BCI was represented by Advocates Preet Pal Singh, Saurabh Sharma, and Shivam Sachdeva.
The representation for the Bar Council of Delhi was provided by Advocate Ajay Kumar Agarwal.
Written by – Sohini Chakraborty intern under Legal Vidhiya
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