BAR COUNCIL OF INDIA

INTRODUCTION
The Bar Council of India is a statutory body that regulates and represents the Indian
bar. It was created by Parliament under the Advocates Act, 1961. It prescribes standards of
professional conduct, etiquettes and exercises disciplinary jurisdiction over the bar. It also sets
standards for legal education and grants recognition to Universities whose degree in law will
serve as a qualification for students to enroll themselves as advocates upon graduation.1

In addition, it performs certain representative functions by protecting the rights,

privileges and interests of advocates and through the creation of funds for providing financial
assistance to organize welfare schemes for them.2

HISTORY
After the Constitution of India was established on January 26, 1950, the Inter-
University Board passed a resolution emphasizing the need for an all-India Bar and the
importance of uniformly high standards for law examinations in different Universities. In May
1950, the Madras Provincial Lawyers Conference, held under the presidency of Shri S.
Varadachariar, resolved that a committee appointed by the Government of India should evolve
a scheme for an all-India Bar and amend the Indian Bar Councils Act such that it conforms to
the new Constitution. On April 12, 1951, Shri Syed Mohammed Ahmad Kazmi, a Member of
Parliament, proposed a bill to amend the India Bar Councils Act. The Government of India
concluded that it was necessary for the Government to sponsor the Bill. In August 1951, a
Committee of Inquiry was set up to consider the feasibility of a unified Bar in India, the
continuance or abolition of the dual system of counsel for each state, possibility of a separate
Bar Council for the Supreme Court and the revision of enactments related to the legal
profession.

STRUCTURE OF THE BAR COUNCIL OF INDIA

The Bar Council of India consists of 18 Members. The Attorney General of India and
the Solicitor General of India are Ex-Officio Members of the council and the other 16 Members
represent the 16 State Bar Councils in the country. The Members are elected for a period of
five years and the Chairman and Vice -Chairman are elected for a period of two years from
among the Members of the Bar Council of India. The Bar Council further consists of various
committees viz., Legal Education Committee, Disciplinary Committee, Executive Committee,
Legal Aid Committee, Advocates Welfare Fund Committee, Rules Committee and various
other Committees formed to look into specific issues arising from time to time.3

1
http://indianbarassociation.org/wp-content/uploads/2013/12/BAR-COUNCIL-OF-INDIA1.pdf
2
http://www.barcouncilofindia.org/about/about-the-bar-council-of-india/
3
http://indianbarassociation.org/wp-content/uploads/2013/12/BAR-COUNCIL-OF-INDIA1.pdf
CONSTITUTION OF BAR COUNCIL OF INDIA
Section 4 of the Bar Council of India provides:

(1) There shall be a Bar Council for the territories to which this Act extends to be known as the
Bar Council of India which shall consist of the following members, namely:–

a) the Attorney- General of India, ex officio;

b) the Solicitor- General of India, ex officio;
c) one member elected by each State Bar Council from amongst its members.

Section 4(1-A) of the Act makes it clear that no person shall be eligible for being elected
as a member of the Bar Council of India unless he possesses the qualifications specified in the
proviso to sub- section (2) of section 3.

Provided that such person shall continue to carry on the duties of his office until the
Chairman or the Vice- Chairman, as the case may be, of the Council, elected after the
commencement of the Advocates (Amendment) Act, 1977 (38 of 1977), assumes charge of the
office. Section 4(3) of the Act provides that the term of office of a member of the Bar Council
of India elected by the State Bar Council shall-

(i) in the case of a member of a State Bar Council who holds office ex officio, be
two years from the date of his election 2 [or till he ceases to be a member of the
State Bar Council, whichever is earlier]; and
(ii) in any other case, be for the period for which he holds office as a member of the
State Bar Council:
Provided that every such member shall continue to hold office as a member of the Bar
Council of India until his successor is elected.

Section 10-A of the Act provides that The Bar council of India shall meet at New Delhi
or at such other place as it may, for reasons to be recorded in writing, determine. A State Bar
Council shall meet at its headquarters or at such other place as it may, for reasons to be recorded
in writing, determine. The committees other than disciplinary committees constituted by the
Bar Councils shall meet at the headquarters of the respective Bar councils. Every Bar Council
and every committee thereof except the disciplinary committees shall observe such rules of
procedure in regard to the transaction of business at their meetings as may be prescribed. The
disciplinary committees constituted under section 9 shall meet at such times and places and
shall observe such rules of procedure in regard to the transaction of business at their meetings
as may be prescribed.

Section 10-B of the Act provides that an elected member of a Bar Council shall be
deemed to have vacated his office if he is declared by the Bar Council of which he is a member
to have been absent without sufficient excuse from three consecutive meetings of such Council,
or if his name is, for any cause removed from the roll of advocates or if he is otherwise
disqualified under any rule made by the Bar Council of India.
 Section 14 of the Act provides that no election of a member to a Bar Council shall be
called in question on the ground merely that due notice thereof has not been given to any person
entitled to vote thereat, if notice of the date has, not less than thirty days before that date, been
published in the Official Gazette.4

FUNCTIONS OF BAR COUNCIL OF INDIA

The Bar Council of India was established by Parliament under the Advocates Act, 1961.
The following statutory functions under Section 7 cover the Bar Council’s regulatory and
representative mandate for the legal profession and legal education in India:

1. To lay down standards of professional conduct and etiquette for advocates.

2. To lay down procedure to be followed by its disciplinary committee and the disciplinary
committees of each State Bar Council.
3. To safeguard the rights, privileges and interests of advocates.
4. To promote and support law reform.
5. To deal with and dispose of any matter which may be referred to it by a State Bar
Council.
6. To promote legal education and to lay down standards of legal education. This is done
in consultation with the Universities in India imparting legal education and the State
Bar Councils.
7. To recognize Universities whose degree in law shall be a qualification for enrolment as
an advocate. The Bar Council of India visits and inspects Universities, or directs the
State Bar Councils to visit and inspect Universities for this purpose.
8. To conduct seminars and talks on legal topics by eminent jurists and publish journals
and papers of legal interest.
9. To organize legal aid to the poor.
10. To recognize on a reciprocal basis, the foreign qualifications in law obtained outside
India for the purpose of admission as an advocate in India.
11. To manage and invest the funds of the Bar Council.
12. To provide for the election of its members who shall run the Bar Councils.

The Bar Council of India can also receive grants, donations, and gifts for any of these
purposes. With respect to the point 6, the Supreme Court has made it clear that the question of
importing legal education is entrusted to the Universities in India and not to the Bar Council of
India. All that the Bar Council can do is to suggest ways and means to promote suck legal
education to be imparted by the Universities and for that purpose it may lay down the standards
of education. Sections 7 do not entitle the Bar Council itself to frame rules laying down pre-
enrolment as Advocate.

In Raveendranath Naik v. Bar Council of India5, the resolution passed by the Bar
Council of India directing advocates not to participate in any programme organized by the

4
https://www.srdlawnotes.com/2017/03/constitution-and-functions-of-bar.html
5
AIR 2007 Kar. 75.
Legal Services Authorities in any Lok Adalat or any legal aid programme has been held illegal
and void.

In Ex-Captain Harish Uppal v. Union of India6, the court held that section 7 provides
in respect of the functions of the Bar Council of India, but none of its functions mentioned in
section 7 authorizes it to paralyze the working of the Courts. On the contrary it is enjoined with
a duty to lay down standards of professional conduct and etiquette for advocates. No Bar
Council can ever consider giving a call of strike or a call of boycott. In case any association
calls for a strike or boycott the concerned State Bar Council of India must immediately take
disciplinary action against the advocates who gives a call for a strike. It is the duty of every
advocate to ignore a call of strike or boycott.7

Section 7(2) of the Advocates Act provides that the Bar Council of India may constitute
one or more funds in the prescribed manner for the purpose of-

a) giving Finance assistance to organize welfare schemes for indigent, disabled or other
advocates;
b) giving legal aid or advice in accordance with the rules made in this behalf
c) establishing law libraries.
It may receive any grants, donations, gifts or benefactions for all or any of the purposes
specified above such grants, donations, etc., shall be credited to the appropriate fund or funds
constituted under this sub-section.
The important powers and functions of the Bar Council of India may be discussed as follows:

1. Admission as advocate. -
Section 20 of the Advocates Act provides that every advocate who was entitled as of right
to practice in the Supreme Court immediately before the appointed day and whose name is not
entered in any State roll may, within the prescribed time, express his intention in the prescribed
form to the Bar Council of India for the entry of his name in the roll of a State Bar Council and
on receipt thereof the Bar Council of India shall direct that the name of such advocate shall,
without payment of any fee, be entered in the role of that State Bar Council and the State Bar
Council concerned shall comply with such direction. The entry in the State Roll made in the
compliance with such direction shall be made in the order of seniority determined in
accordance with the provisions of Section 17(3). Where an advocate omits or fails to express
his intention within the prescribed time, his name shall be entered in the roll of the State Bar
Council of Delhi.

Section 19 of the Advocates Act makes it clear that every State Bar Council shall send to
the Bar Council of India an authenticated copy of the roll of advocates prepared by it for the
first time under this Act and shall. thereafter, communicate to the Bar Council of India all
alternations in and addition to, any such roll, as soon as the same have been made.

6
AIR 2003 SC 739
7
http://indianbarassociation.org/wp-content/uploads/2013/12/BAR-COUNCIL-OF-INDIA1.pdf
 Section 18 of the Advocates Act makes provision in respect of the transfer of name from
one State roll to another. It provides that any person whose name is entered as an advocate on
the roll of any State Bar Council may make an application in the prescribed form to the Bar
Council of India for the transfer of his name from the roll of that State Bar Council to the roll
of any other State Bar Council and on receipt of any such application, the Bar Council of India
shall direct that the name of such person shall, without the payment of any fee, be removed
from the roll of the first-mentioned State Bar Council and entered in the roll of the other State
Bar Council and the State Bar Councils concerned shall comply the such direction.

2. Appointment of Committee and Staff-members. -

Section 9 of the Advocates Act empowers a Bar Council to appoint disciplinary
committees. It shall constitute one or more disciplinary committees each of which shall consist
of three persons of whom two shall be persons elected by the Council from amongst its member
and the other shall be a person co-opted by the Council from amongst advocates who possess
the qualifications specified in the proviso to sub-section (2) of Section 3 of the Act and who
are not members of the Council and the senior most advocates amongst the members of a
disciplinary committee shall be the Chairman thereof.

Section 9-A of the Advocates Act empowers a Bar Council to appoint one or more legal
aid committees. Each committee shall convert of such number of members not exceeding nine
but not less than five as may be prescribed. The qualifications. the method of selection and the
term of office of the members of such committee shall be such as may be prescribed.
Section 10(1) makes provisions 1n respect of constitution of Standing Committees by a
State Bar Council. Besides, Section 10(2) of the Advocates Act requires the Bar Council of
India to constitute the following committees:

a) an executive committee consisting of nine members elected by the Council from

amongst its members;
b) a legal education committee consisting of ten members, of whom five shall be persons
elected by the Council from amongst its members and Eve shall be persons co-opted
by the Council who are not members thereof.

Section 11 of the Advocates Act requires every Bar Council to appoint a secretary. It also
empowers the Bar Council to appoint an accountant and such member of other persons on its
staff as it may deem necessary.

3. Maintenance of account, etc.-

According to Section 12 of the Advocate; Act every Bar Council shall cause to be
maintained such books of mum and other books in such form and in such manner as may be
prescribed. The account shhll be audited by auditors duly qualified to act as auditors of
companies nder the Companies Act, 1956 at such times and in such manner as may be
prescribed.
 4. Rule-making power.-
A Bar Council may make rules under the provisions of Section 15 of the Advocates Act.
Sub-section (2) of Section 15 of the Act provides that in particular and without prejudice to the
generality of the foregoing power, such rules may provide for-

a) the election of members of the Bar Council by secret ballot including the conditions
subject to which persons can exercise the right to vote by postal ballot, the preparation
and revision of electoral rolls and the manner in which the results of election shall he
published.
b) the manner of election of the Chairman and the Vice-Chairman of the Bar Council;
c) the manner in which and the authority by which, doubts and disputes as to the validity
of an election to the Bar Council or to the office of the Chairman or Vice-Chairman
shall be finally decided;
d) the filling of casual vacancies in the Bar Council;
e) the powers and duties of the Chairman and the Vice-Chairman of the Bar Council;
f) the constitution of one or more funds by a Bar Council for the purpose of giving
financial assistance or giving legal aid or advice referred to in Section 6(2) and Section
7(1) of the Advocates Act;
g) Organization of legal aid and advice to the poor. constitution and function of
committees and sub-committees for that purpose and description of proceedings in
connection with which legal aid or advice may be given;
h) the summoning and holding of meetings of the Bar Council, the conduct of business
thereat and the number of members necessary to constitute a quorum;
i) the constitution and functions of any committee of the Bar Council and the terms of
office of members of any such Committees;
j) the summoning and holding of meetings, the conduct of business of any such committee
and the number of members necessary to constitute a quorum;
k) the qualifications and the conditions, of service of the secretary, the accountant and
other employees of the Bar Council;
l) the maintenance of books of accounts and other books by the Bar Council;
m) the appointment of auditors and the audit of the accounts of the Bar Council;
n) the management and investment of the funds of the Bar Council.

Section 49 of the Advocates Art confers on the Bar Council of India general power to make
rules. It provides that the Bar Council of India may make rules for discharging its functions
under this Act and in particular, such rules may prescribe-

a) the conditions subject to which an advocate may be entitled to vote at an election to the
State Bar Council including the qualifications or disqualifications of voters and the
manner in which an electoral roll of voters may be prepared and revised by a State Bar
Council;
b) qualifications for membership of a Bar Council and the disqualification for such
membership;
c) the time within which and the manner in which effect may be given to the proviso to
section 3(2).
 d) the manner in which the name of any advocate may be prevented from being entered in
more than one State roll;
e) the manner in which the seniority among advocates may be determined;
f) the minimum qualifications required for admission to a course of degree in law in any
recognized University;
g) the class or category of persons entitled to be enrolled as advocates;
h) the conditions subject to which an advocate shall have the right to practice and the
circumstances under which a person shall be deemed to practice as an advocate in a
Court;
i) the form in which an application shall be made for the transfer of the name of an
advocate from one State roll to another;
j) the standard of professional conduct and etiquette Do be observed by advocates;
k) the standards of legal education to be observed by Universities in India and the
inspection of Universities for the purpose;
l) the foreign qualifications in law obtained by persons other than citizens of India which
shall be recognized for the purpose of admission as an advocate under this Act;
m) the procedure to be followed by the disciplinary committee of a State Bar Council and
by its own disciplinary committee;
n) the restrictions in the matter of practice to which senior advocates shall be subject;
o) the form of dresses or robes to be worn by advocates having regard to the climatic
conditions appearing before any Court or tribunal;
p) the fees which may be levied in respect of any matter under this Act;
q) general principles for guidance of State Bar Councils and the manner in which
directions issued or orders made by the Bar Council of India may be enforced;
r) any other matter which may be prescribed.

It has been made clear that rule made with reference to the standards of professional
conduct and etiquette to be observed by the advocates and the form of dresses or robes to be
worn by the advocates having regard to the climatic conditions appearing before any Court or
tribunal shall have effect only when they will be approved by the Chief Justice of India.
However, rules made with reference to such matters and in force immediately before the
commencement of the Advocates (Amendment) Act, 1973, shall continue in force until altered
or repealed or amended in accordance with the provisions of this Act.

It has also been made clear that rules made with reference to the foreign qualifications in
law obtained by persons other than citizens of India which shall be recognized for the purpose
of admission as an advocate under this Act shall have effect only when they will be approved
by the Central Government.

In the case of Indian Council of Legal Aid and Advice v. Bar Council of India 8, the
Supreme Court has held that the rule debarring a person who has completed the age of forty-
five to be enrolled as an advocate is arbitrary, unreasonable and beyond the power of the Bar
Council of India and consequently, void.

8
AIR 1995 SC 691
 The Supreme Court in V. Sudeer v. Bar Council of India9 has held that the Bar Council
can exercise power and frame rules for effectively discharging its statutory functions as laid
down by the Act. Neither of statutory functions entitled Bar Council to provide for
disqualification, disability or an additional condition for enrolment. The rule made by Bar
Council of India which lays down pre-enrolment training as pre-condition is ultra vires.

5. Power to punish for professional or other misconduct. -

Section 36 of the Advocates Act empowers the Bar Council of India to punish an advocate
for professional or other misconduct. 1t provides that where on receipt of a complaint or
otherwise the Bar Council of India has reason to behave that any advocate whose name is
entered on any State roll has been guilty of professional or other misconduct, it shall refer the
case for disposal to its disciplinary committee. The disciplinary committee of the Bar Council
of India may, either on its own motion or on a report by any State Bar Council or an application
made to it by any person interested, withdraw for inquiry before itself any proceedings for
disciplinary action against any advocate pending before the disciplinary committee of any State
Bar Council and dispose of the same.

8. Appellate power. –
Section 37 of the Advocates Act empowers the Bar Council of India to hear appeal against
the order of the disciplinary committee of a State Bar Council made under Section 35 of the
Act. It Provides that any person aggrieved by an order of the disciplinary committee of a State
Bar Council under Section 35 for punishing an advocate for professional or other misconduct
or the Advocate-General of the State may, within 60 days of the date of the communication of
the order to him, prefer an appeal to the Bar Council of India. Every such appeal shall be heard
by the disciplinary committee of the Bar Council of India which may pass such order including
an order varying the punishment awarded by the disciplinary committee of the State Bar
Council thereon as it deems fit. However, no order of the disciplinary committee of the State
Bar Council shall be varied by the disciplinary committee of the Bar Council of India so as to
prejudicially affect the person aggrieved without giving him reasonable opportunity of being
heard. Section 38 provides remedy to the person aggrieved by the order passed by the
disciplinary committee of the Bar Council of India. It provides that any person aggrieved by
an order made by the disciplinary committee of the Bar Council of India under Section 36 or
Section 37 of the Advocates Act or the Attorney-General of India or Advocate-General of the
State concerned, as the case may be, may within 60 days of the date on which the order is
communicated to him. prefer an appeal to the Supreme Court and the Supreme Court may pass
such order including an order varying the punishment awarded by the disciplinary committee
of the Bar Council of India thereon as it deems fit. However, no order of the disciplinary
committee of the Bar Council of India shall be varied by the Supreme Court as so as to
prejudicially affect the person aggrieved without giving him a reasonable opportunity of being
heard. Disciplinary jurisdiction over advocates though rests in Bar Councils, yet by virtue of
section 38, final authority is with the Supreme Court.10

9
AIR 1999 SC 1167
10
Harish Uppal v. Union of India, 2003 AIR SCW 43
 Section 39 makes it clear that Sections 5 and 12 of the Limitation Act shall, so far as may
be, apply to the appeal to the Bar Council of India under Section 37 or to the Supreme Court
under Section 38.

7. Other powers and functions.-

(i) The Bar Council of India may if it is satisfied that any State Bar Council is in need of
funds for the purpose of performing its functions under the Advocates Act, give such
financial assistance as it deems fit to that Bar Council by way of grant or otherwise.11
(ii) Where any country specified by the Central Government in this behalf by notification
in the official Gazette, prevents citizens of India from practicing the profession of law
or subjects them to unfair discrimination in that country no subject of any such country
shall be entitled to practice the profession of law in India.12
(iii) The Bar Council of India may, at any time, call for the record of any proceeding under
this Act which has been disposed of by a State Bar Council or a committee thereof and
from which no appeal lies for the purposes of satisfying itself as to the legality or
propriety of such disposal and may pass such orders in relation thereto as it may think
fit. It has been made clear that no order which prejudicially affects any person shall be
passed under this section without giving him a reasonable opportunity of being heard.13
(iv) The Bar Council of India or any of its committees other than its disciplinary committee,
may of its own motion or otherwise review any order within 60 days of the date of that
order was passed by it under the Advocates Act.14

In D. Saibaba v. Bar Council of India15, the Supreme Court has held that so far as the
commencement of period of limitation for filing the review petition is concerned the expression
"the date of that order" as occurring in section 48AA has to be construed as meaning the date
of communication or knowledge (actual or constructive) of the order m the petitioner.

(v) Section 48 makes provision in respect of indemnity against the legal proceedings. It
provides that no suit or other legal proceeding shall lie against any Bar Council or any
committee thereof or a member of a Bar Council or any committee thereof for any act
done in good faith done or intended to be done in pursuance of the provisions of the
Advocates Act or any rules made thereunder.16

11
Advocates Act, 1961,Section 46-A
12
Advocates Act, 1961,Section 47
13
Advocates Act, 1961,Section 48-A
14
Advocates Act, 1961,Section 48-AA
15
AIR 2003 SC 2502
16
Advocates Act, 1961,Section 48-B
BAR COUNCILS AND OBSERVANCE OF THE PRINCIPLES OF
NATURAL JUSTICE
Bar Councils are treated as domestic tribunals. Domestic Tribunals may be taken to
mean the Administrative Agencies created to regulate the internal discipline among the
members by exercising adjudicatory and Investigating powers. The Domestic Tribunal decides
whether any breach of its regulation has been committed by any of its members or Workers
and whether the member or the worker can be punished.

The principles of natural justice are not embodied rules. They are not fixed in any Code,
actually they are judge-made principles and regarded counterpart of the American procedural
due process. These principles have been developed to secure justice and to prevent miscarriage
of justice.17

The rules of natural justice are not embodied rules and therefore It is not possible and
practicable to precisely define the parameters of natural justice. Tucker, L.J.,18 has observed
"there are, in my view, no words which are of universal application to every kind of inquiry
and the every kind of domestic tribunal. The requirements of natural justice must depend on
the circumstances of the case, the nature of inquiry the rules under which the tribunal is acting,
the subject-matter that is being dealt with. and so forth."

In Union of India v. PK. Roy19, the Supreme Court has observed that the extent and
application of the doctrine depends upon the nature of the jurisdiction conferred on the
administrative authority, upon the character of the rights of the person affected, the scheme and
policy of the statute and other relevant circumstances disclosed in the particular case.
In A.K. Kraipak v. Union of India20, the Supreme Court has observed "what particular
rule of natural justice should apply to a given case must depend to a great extent on the facts
and circumstances of that case, the framework of the law under which the enquiry is held and
the constitution of the Tribunal or body of persons appointed for that purpose, Whenever a
complaint is made before a court that some principles of natural Justice had been contravened,
the court has to decide whether the observance of that rule was necessary for a just decision on
the facts of that case.

At present the Courts give much emphasis on the concept of fairness The concept of
fairness requires fairness in action of the administration whether the action is judicial, quasi-
judicial or administrative. The idea of natural justice is fair play of action.21 However, the
concept of fairness is a term having the import wider than that of the natural justice. Fairness
includes the natural justice. The doctrine of fairness requires the observance of the principles
of natural Justice as well. In addition to the principles of natural justice the doctrine of fairness

17
A.K. Kraipak v. Union of India, AIR 1970 SC 150.
18
Russell v Duke of Norfolk, (1949) 1 All ER 109 (CA)
19
AIR 1968 SC 850
20
AIR 1970 SC 150
21
Maneka Gandhi v. Union of India, AIR 1978 SC 598
provides certain procedure) safeguards where none of the principles of the natural justice is
applicable.22

IMPORTANT CASE LAWS REGARDING BCI

1. Bar Council of India v. A.K. Balaji and others23
Overview
The Hon'ble Supreme Court of India (Supreme Court) pronounced a judgment
restricting foreign law firms/lawyers from setting up offices in India and has only allowed them
to come to India on temporary basis for advise on foreign law only and for participation in
international commercial arbitrations in India. Further, restrictions have been imposed on
BPO's so that they do not venture in to practice of law in any manner.

Background
Under the Advocates Act 1961 (Act), a foreigner is not entitled to practice law in view
of the restrictions contained under the said Act. However, under the guise of different entities
foreign lawyers were conducting seminars and conferences etc in India. Foreign law firms were
also practicing the profession of law in India in violation of the Act. Writ petitions were filed
before the Hon'ble Madras High Court (ie, AK Balaji vs. Government of India (Madras HC
Judgment)) and Hon'ble Bombay High Court (ie, Lawyers Collective vs. Bar Council of India
(Bombay HC Judgment)), seeking restrictions on such practices.

The Supreme Court, in Bar Council of India vs. AK Balaji & Ors, passed a landmark
judgment dated 13 March 2018, which has put to rest some of the major issues concerning the
entry of foreign lawyers and law firms in India. The key issue was whether foreign lawyers and
law firms are permitted to practice in India.

Madras HC judgment
The main issue arising in the Madras HC Judgement was whether foreign lawyers and
law firms can practice law in India in case of litigation and commercial transactions. The writ
petition was filed by Mr. A.K. Balaji, Advocate, seeking directions restricting the entry of
foreign lawyers and law firms in India. The Madras High Court held that there was no bar on
foreign lawyers and law firms from taking part in negotiations, settling of documents and
conducting arbitrations in India. There was no bar on foreign lawyers and law firms providing
consultancy/support services as the same cannot be treated as practice of law. There was no
bar on foreign lawyers and law firms to participate in international commercial arbitration in
India. It was observed that foreign contracting parties are entitled to lawyers from their own
country. Foreign lawyers and law firms can "fly in and fly out" of India for advising their clients
in India on foreign law and there is no bar on the same.

22
Dr. Kailash Rai, Legal Ethics Accountability for Lawyers and Bench-Bar Relations 50-62 (Central Law
Publications, Allahabad, 11th edn., 2018).
23
AIR 2018 SC 1382
 It was also observed that several accountancy and management firms are employing
law graduates who are rendering legal services which is contrary to the Act and, and held that
in case any activity is carried out against the provisions of the Act, Bar Council of India will
be entitled to take appropriate action.

Bombay HC judgment
The main issue arising in the Bombay HC Judgment was whether foreign law firms can
open liaison offices in India to carry on the practice in non-litigious matters without being
enrolled as Advocates under the Act.

The Bombay High Court held that, the phrase "to practice profession of law" used in
Section 29 of the Act is wide enough to cover litigious as well as non-litigious practice. As a
result, foreign lawyers and law firms were bound to follow provisions of the Act. The Reserve
Bank of India was not justified in granting permission to foreign law firms to open liaison
offices in India.

Supreme Court judgment

The Hon'ble Supreme Court held that the phrase "practice of profession" includes both
litigation practice and non-litigation practice. The understanding of "practice of profession"
has thus been given a wider meaning to include provision of advisory services, legal opinions
etc.

On the issue whether practice by foreign lawyers and law firms is permissible without
fulfilling the requirements of the Act and Bar Council of India Rules, the Hon'ble Supreme
Court held that the regulatory framework for conduct of advocates applies to non-litigation
practice. It was further held that the prohibitions as applicable under the Act are applicable to
foreign lawyers and law firms also.

On the issue whether there is a bar on foreign lawyers and law firms to visit India on a
"fly in and fly out" basis for giving legal advice regarding foreign law, the Hon'ble Supreme
Court held a casual or temporary visit for giving advice will not be covered under "practice"
and the same is permissible. On the issue whether a particular visit will be treated as 'casual' or
'regular' will be decided on a case to case basis.

The Hon'ble Supreme Court has subjected the foreign law firms/lawyers to regulatory
mechanism in India and suggested the Bar Council of India or Union of India to frame
appropriate rules in this regard.

The Hon'ble Supreme Court also clarified that the Act deals with companies and firms
in addition to individuals. This is the first instance wherein law firms or entities engaged in the
legal sector were recognized, which were earlier not recognized by the Bar Council of India.24

The ruling that foreign lawyers would be amenable to the jurisdiction of Bar Council
even in respect of international commercial arbitrations appears to be contrary to the

24
http://www.mondaq.com/india/x/688390/trials+appeals+compensation/Supreme+Court+Of+India+Clarifies
+Foreign+Law+FirmsLawyers+Scope+Of+Services+In+India
internationally accepted practice of foreign lawyers freely practising before international
commercial arbitral tribunals. While Supreme Court has not placed any express restrictions and
has only acknowledged Bar Council’s right to regulate, it is hoped that any regulation is
consistent with the spirit of Government of India’s intention to promote India as an
international arbitration hub.25

2. Ajitsinh Arjunsinh Gohil v. Bar Council of Gujarat26

BCI, while exercising original jurisdiction on transfer of a complaint, cannot remand the
complaint to the State Bar Council
The Supreme Court in dealing with the question as to whether after transfer of a
disciplinary proceeding, as per the mandate enshrined under Section 36B(1) of the Advocates
Act, 1961 to the Bar Council of India (BCI) from the State Bar Council, can the BCI, instead
of enquiring into the complaint and adjudicating thereon, send it back to the State Bar Council
with the direction to decide the controversy within a stipulated time, the Court held that the
legislature never intended a complaint made against an Advocate either from the perspective
of the complainant or from the delinquent to be transferred to BCI, again to be sent back. It
was held that BCI, while exercising original jurisdiction on transfer of a complaint, cannot
exercise the appellate jurisdiction.

The Court, however, took note of the fact that on many occasions disciplinary authority
of the State Bar Council does not dispose of the complaint within the stipulated period, as a
consequence of which the proceeding stands transferred to the BCI. Looking down upon such
practice, the Court said that once a complaint is made by a litigant, it has to follow a definite
procedure and is required to be dealt with as per the command of the Act to conclude the
disciplinary proceeding within a period of one year from the date of receipt of the complaint
or the date of initiation of the proceedings at the instance of the State Bar Council. Not to do
something what one is required to do, tantamount to irresponsibility and the prestige of an
institution or a statutory body inheres in carrying out the responsibility.

The bench of Dipak Misra and A.M. Khanwilkar, JJ, hence, directed the State Bar
Councils to take a periodical stock of cases in each meeting with regard to the progress of the
Disciplinary Committee, find out the cause of delay and guide themselves to act with
expediency so that the Council, as a statutory body, does its duty as commanded under the
Act.27

25
http://www.nishithdesai.com/information/research-and-articles/nda-hotline/nda-hotline-single-
view/newsid/4547/html/1.html?no_cache=1
26
AIR 2017 SCC 351
27
https://www.scconline.com/blog/post/tag/bar-council-of-india/
CONCLUSION
The Bar Council of India has a lot of functions vested within itself, whereby exercising
those functions it can restructure and reframe the entire legal arena in the country. In fact, it
can be more predominantly envisaged that in modern times it has hardly contributed
constructively in the improvement of law in India. There are certain loopholes in the legal arena
in India today which the Bar Council must look into, in order to protect the law standard from
degradation and to maintain the same standards.