IN THE HIGH COURT OF JUDICATURE AT MADRAS (Special Original Jurisdiction) W.P. No. 5614 of 2010 A. K.Balaji, 7/107, Mel Batcha Pet, Harur, Tamilnadu 636903. ..... Petitioner Vs. 1. The Government of India Rep. by Secretary to Govt. Law Department, 4th Floor, A-Wing, Shastri Bhawan, New Delhi-110 001 ..... Respondent No. 1 2. The Government of India Rep. by Secretary to Govt. Home Department, North Block, Central Secretariat, New Delhi - 110 001 ..... Respondent No. 2 3. The Government of India Rep. by Secretary to Govt. Finance Department North Block, Lok Nayak Bhavan, New Delhi. ..... Respondent No. 3 4. The Government of India Rep. by Secretary to Govt. Department of External Affairs, Akbar Bhavan, New Delhi-110021. ..... Respondent No. 4 5. The Government of India Rep. by Secretary to Govt. Income Tax Department, 7th floor, MayurBhavan, Connaught Circus, New Delhi- 110055 ..... Respondent No. 5 6. The Reserve Bank of India Central Office, Centre 1, World Trade Centre, Cuffe Parade, Colaba, Mumbai – 400 005. ..... Respondent No. 6 7. The Bar Council of India, 21, Rouse Avenue, Institutional Area, New Delhi – 110002 ..... Respondent No. 7 8. The Bar Council of Tamilnadu, Rep. by Secretary, High Court Compound, Chennai – 600104 ..... Respondent No. 8 9. Rouse Cisons Complex, 1st Floor, 150/86, Montieth Road, Egmore, Chennai - 600008, India ..... Respondent No. 9 10. Ashurst LLP New Delhi liaison office, d-1, 6 Aurangzeb road, New Delhi 110011 ..... Respondent No. 10 11. Kelley Drye & Warren LLP C/O Wakhariya & Wakhariya B-2 Taj Building, Wallace Street 210 Dr. D. N. Road, Mumbai 400 001 India ..... Respondent No. 11 12. Kennedys C/O Tuli & Co 148 Golf Links, New Delhi 110003 India ..... Respondent No. 12 13. DeHeng Law Office C-9 Friends Colony East, New Delhi 110 003 India ..... Respondent No. 13 14. White & Case LLP 1214, 12th floor, maker chambers v, Nariman point, Mumbai 400021. India ..... Respondent No. 14 15. Integreon Managed Solutions, Inc Vatika Towers, 2nd Floor, Tower B, Sector 54, DLF Golf Course Road, Gurgaon (Haryana) 122 022. India ..... Respondent No. 15 16. Linklaters LLP One Silk Street London EC2Y 8HQ United Kingdom ..... Respondent No. 16 17. Freshfields Bruckhaus Deringer 65 Fleet Street London EC4Y 1HT United Kingdom ..... Respondent No. 17 18. Allen & Overy One Bishops Square, London E1 6AD, United Kingdom United Kingdom ..... Respondent No. 18 19. Clifford Chance 10 Upper Bank Street London E14 5JJ United Kingdom ..... Respondent No. 19 20. Wilmer Hale 399 Park Avenue New York 10022. United States of America ..... Respondent No. 20 21. Shearman & Sterling LLP 801 Pennsylvania Avenue, NW Suite 900 Washington, DC 20004-2634 United States of America ..... Respondent No. 21 22. Herbert Smith LLP Exchange House Primrose Street London, EC2A 2HS United Kingdom ..... Respondent No. 22 23. Slaughter and May One Bunhill Row London, EC1Y 8YY United Kingdom ..... Respondent No. 23 24. Hogan & Hartson 555 Thirteenth Street, NW Washington, DC 20004 United States of America ..... Respondent No. 24 25. Davis Polk & Wardwell 450 Lexington Avenue New York, NY 10017 United States of America ..... Respondent No. 25 26. Eversheds 1 Wood Street, London, EC2V 7WS United Kingdom ..... Respondent No. 26 27. Akin Gump Strauss Hauer & Feld LLP One Bryant Park New York, NY 10036 United States of America ..... Respondent No. 27 28. Paul, Weiss, Rifkin, Wharton & Garrison 1285 Avenue of the Americas New York, NY 10019-6064 United States of America ..... Respondent No. 28 29. Norton Rose LLP 3 More London Riverside London, SE1 2AQ United Kingdom ..... Respondent No. 29 30. Pillsbury Winthrop Shaw Pittman 1540 Broadway New York, NY 10036-4039 United States of America ..... Respondent No. 30 31. Wilson Sonsini Goodrich & Rosati 650 Page Mill Road Palo Alto, CA 94304 United States of America ..... Respondent No. 31 32. Arnold & Porter LLP 555 Twelfth Street, NW Washington, DC 20004-1206 United States of America ..... Respondent No. 32 33. Covington & Burling LLP The New York Times Building 620 Eighth Avenue New York, NY 10018-1405 United States of America ..... Respondent No. 33 34. Perkins Coie 1888 Century Park E. Suite 1700 Los Angeles, California 90067-1721 United States of America ..... Respondent No. 34 35. Loyens & Loeff 1, Avenue Franklin D. Roosevelt 75008 Paris France ..... Respondent No. 35 36. Freehills MLC Centre 19 Martin Place Sydney NSW 2000 Australia ..... Respondent No. 36 37. Clayton Utz Levels 19-35, No. 1 O'Connell Street Sydney NSW 2000, Australia ..... Respondent No. 37 38. Mayer Brown LLP 71 S. Wacker Drive Chicago, IL 60606 United States of America ..... Respondent No. 38 39. Clyde & Co 51 Eastcheap, London, EC3M 1JP, United Kingdom ..... Respondent No. 39 40. Bird and Bird LLP 15 Fetter Lane London EC4A 1JP United Kingdom ..... Respondent No. 40 AFFIDAVIT OF THE PETITIONER I, A.K.Balaji, Son of Sri A. R. Kirubakaran, Hindu, aged about 30 years, residing at 7/701, Mel Batcha Pet, Harur, Tamilnadu 636903, now temporarily come down to Chennai, do hereby solemnly affirm and sincerely state as follows: 1. I am the Petitioner herein and as such, I am well acquainted with the facts of the case. I have not filed any other Writ Petition in this Hon’ble Court or any other Court praying for similar relief arising out of the same cause of action. I am filing this writ petition on public interest. 2. I submit that I am a citizen of India and a Law Graduate. I have secured my M.B.A., LLB., degree in Bangalore University and have been enrolled myself as an Advocate with the Bar Council of Tamilnadu under enrollment Number Ms.344/07 and I am having active practice in law in the State of Tamilnadu within the jurisdiction of this Hon’ble Court as well as in various other High Courts in the Country. 3. I respectfully submit that the legal profession in the country is governed by the Advocates Act, 1961 and the rules framed thereunder by the Bar Council of India and the Bar Council of respective States. I respectfully submit that Sec.29 in Chapter IV of the Advocates Act provides that “only one class of persons are entitled to practice the profession of law, viz. the Advocates”. An Advocate has been defined under Sec.2A of the said Act to mean “an Advocate entered in any roll under the provisions of the said Act”. Roll has been defined under Sec.2K of the said Act as “Roll of Advocates prepared and maintained under the said Act”. The State Roll is defined under Sec.2N of the said Act to mean “a Roll of Advocates prepared and maintained by a State Bar Council under Sec.17 of the said Act. 4. As such, it is apparent that only one class of persons, viz. Advocates, i.e. persons who are on the roll of the Advocates maintained by a State Bar Council under the provisions of the said Act are entitled to practice the profession of law in India. 5. So far as admission to the Rolls of a Bar Council is concerned, provision is made under Sec.24 of the said Act which prescribes the qualification as to persons who may be admitted as an Advocate on a State Roll. It provides that a person shall be qualified to be admitted as an Advocate of a State roll if he fulfils the conditions enumerated thereunder, viz. he is a citizen of India. However, a provision has been added to the said Sec.24 (1)(a) to the effect that subject to other conditions contained in this Act, a national of any other country may be admitted as an Advocate of a State roll, if citizens of India, duly qualified, are permitted to practice law in that other country. Sec. 24(1)(c) provides that “the person should have obtained a degree in law from any University in the Territory of India or from any other University outside the Territory of India if the degree is recognized for the purposes of the Act by the Bar Council of India. I submit that Sec.33 of the said Act provides that “no person on or after the appointed date, namely the date on which the said Act comes into force, would be entitled to practice in any Court or before any authority or person unless he is enrolled as an Advocate under the Act, except provided under the Act or in any other law for the time being in force. 6. I respectfully submit, Sec.47 of the said Act provides for reciprocity where any country specified by the Central Govt. 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 to any such country shall be entitled to practice the profession of law in India. Sec. 47(2) of the Act provides that “subject to the provisions contained under Sec. 47(1) as referred to above, the Bar Council of India may prescribe the conditions, if any, subject to which the foreign qualifications in law obtained by the persons other than citizens of India, shall be recognized for the purpose of admission as an Advocate under the Act. 7. I respectfully submit that a wholesome reading of the above said provisions would make it abundantly clear that to be entitled to practice the profession of law in India, a person should be a citizen of India and should possess a law degree obtained from an University within the Territory of India, provided however that Nationals of any other country may be admitted as an Advocate on State Roll, if citizens of India duly qualified are permitted to practice law in that other country and persons who have obtained degree of law from any University outside the Territory of India may be permitted to practice the profession of law in India provided the said degree is recognized by the Bar Council of India and subject to such conditions as may be imposed by the Bar Council of India, subject however to the rule of reciprocity contained under Sec.47(1) of the said Act. 8. I respectfully submit that Law Graduates from India are not allowed to practice the profession of law in U.K, U.S.A, Australia and various other countries. I state that, the procedure for Indian Lawyers to practice in UK is far more cumbersome as compared to the easy accessibility of the Indian legal market to the laws firms of UK. I state that Indian Lawyers to be qualified to practice in UK they are either expected to obtain a master’s degree in law (LLM) from a University in UK to meet the Tier 1 visa requirements. Take a training contract, normally undertaken by law students wishing to qualify as a lawyer in the UK or they may take the Qualified Lawyers Transfer Test (QL TT), which is a conversion exam, which enables foreign lawyers to qualify as solicitors in England and Wales. FLE Legal Education (FLE), one such provider of Qualified Lawyers Transfer Test (QL TT) in India, conducts the test in conjunction with Central Law Training (CLT), UK The application to register for a test has to be accompanied by a Certificate of Eligibility in favour of the Indian Lawyer. The Certificate of Eligibility is provided by The Law Society, for which the applicant has to pay a fee of £400, and is valid for two years only. Indian lawyers are also required to show that they are suitable for admission as a solicitor in England and Wales by declaring all convictions and other relevant matters when they apply for a Certificate of Eligibility. An Indian advocate is required to Sit for Head III consisting of "Professional conduct & accounts" at a fee of Rs.8000/-. For those advocates whose basic medium of instruction was not English during LL.B course, in addition to Head III they are also be required to Sit for Head IV consisting of "Principles of Common Law" at fee of Rs.59,000/-. The registration fee of Rs.20, 500/- allows candidates to sit the examinations over three consecutive sittings (first sit + 2 re-sits). Thereafter a further registration fee is payable. The registration fee is non-refundable and non-transferable and a separate test re- sit fee is payable for each re-sit the candidate sits. Once an Indian lawyer has completed the QLTT, he/she has to apply for admission to the Roll of Solicitors of the Supreme Court of England & Wales. Before that, he/she has to apply for a CRB (Criminal Records Bureau) check at a fee of £36(approx.). After a successful CRB report he/she can apply for admission to the Roll of Solicitors of the Supreme Court of England & Wales. The fee for enrollment as solicitor with the Law Society is £100.00. This does not entitles an Indian lawyer to practice as an English solicitor which is yet again subject to further permission and grant of practicing certificate at a cost of about £1050 provided a firm has offered a job to such candidate and meet further stringent criteria of the Law Society. Moreover before enrolling as a solicitor with the Supreme Court of England & Wales an Indian advocate is required to show that they have gained two years of common law experience within the past five years; such experience must have been undertaken in three areas of common law and must have covered contentious and non-contentious areas of practice. The two years practicing experience could be gained in India with the respective Bar Council or if not gained in India then be gained in the United Kingdom before he/she can be enrolled as a solicitor. This all further subject to the requirement of work permit to be issued by the United Kingdom which is almost always being refused to Indian Lawyers on the grounds that there are enough solicitors in the United Kingdom and that there is no shortage. Therefore, if Indian Lawyer does not have two years’ experience from the Bar Council, it becomes difficult to gain that experience in the United Kingdom because a work permit is not normally granted. If they have two years’ experience from the Bar Council, it is still difficult to work as a solicitor in United Kingdom because of work permit restrictions. I state that our Indian Advocates Act, 1961 does not contain a requirement similar to the Qualified Lawyers Transfer Test. The Act provides that foreigners may be admitted as an Advocate if Indian nationals are permitted to practice law in their country. 9. I submit that with regard to issue of work permit to Indian Lawyers in UK, it is first necessary for the employer to show that the employment opportunity for which the foreign lawyer is intended and is one which it has not been able to fill with a resident worker. In contrast under existing Indian law there is no such requirement. I state that allowing entry of foreign law firms with no reciprocal arrangements with respect to Indian lawyers should not be entertained. In response, Indian Lawyers have to be allowed to work in the respective country otherwise foreign law firms should not be allowed to exploit the Indian legal market without actually opening up their domestic markets to Indian Lawyers. 10. I submit that there is no reciprocity between India and such other countries. The Bar Council of India has not recognized any law degree obtained from any University outside the Territory of India as sufficient qualification for enrolment under Sec.24 of the Act nor has it framed any rules or regulations permitting citizens of other countries to practice the profession of law in India under Sec. 47(2) of the Act. As such, no person who is not a citizen of India and who does not have a degree of law from any Indian University is entitled to enroll himself/herself as an Advocate with any State Bar Council under Sec.24 of the Advocates Act, 1961. In the absence of enrolment, he is not entitled to practice the profession of law in the country on account of the bar contained under Sec.29 of the said Act. 11. While law on the subject is as clear as above, various International Law Firms, having their routes outside the Territory of India, have opened up Offices in India or in neighboring countries and are operating the legal practice within India, such as Mergers, Take-overs, Acquisitions, Amalgamations etc. and are into various commercial transactions, arbitrations so on and so forth. Moreover, the advocates from various foreign law firms are often visiting India and conducting seminars in various parts of our country. They are entering in to India through visitor’s visa but the actual intention of their visit is to indirectly market and earn money out of clients from India by way of seminars. Moreover they are also conducting arbitration in Indian Hotels and for which the Payments are made to their head office located outside India. This is complete violation of our country’s Income Tax laws, Immigration laws and loss of revenue to our country. Similar to this there are numerous foreign law firms that are draining our Indian legal market. 12. I submit that some of the international law firms has their office in India and practices Indian law by calling themselves as LPO. They are running a law firm in India without obtaining any prior permission from Indian government and the concern authorities. Here they are taking protection under the guise of LPO. This is complete violation of our country’s Income Tax laws, Immigration laws, RBI rules & regulations, Bar council of India rules, Advocate’s Act, and etc. This kind of activities of foreign law firms have to be found and blacklisted. 13. I respectfully submit that to the knowledge of the Petitioner, there are a few Law Firms so operating in the country which had been impleaded as Respondents 9 to 40 in the present Writ Petition for the purpose of an effective adjudication and binding judgment. 14. I respectfully submit, practice of the legal profession in the country by the citizens is governed by the various provisions of the Advocates Act, 1961, disciplinary rules, regulations, ethics so on and so forth. There is a hierarchy of disciplinary authorities such as the State Bar Council, the Bar Council of India, the Supreme Court etc. The disciplinary control can be exercised by the authorities only against the Advocates who are on its rolls. Persons who are not on the rolls would not be subject to the disciplinary jurisdiction of the Bar Council of the State or Bar Council of India or subject to the Appellate jurisdiction of the Hon’ble Supreme Court. As such, if any person who is not subject to the disciplinary control bodies, is allowed to practice the profession of law in the country, they he would go scot-free and would not be subject to supervision, disciplinary jurisdiction and would not be governed by the rules and regulations, ethics, principles etc. It would be giving them a premium where they should be visited with a penalty. 15. I respectfully submit, persons who are not subject to the disciplinary control of the above bodies, are not entitled to practice the profession of law in the country. 16. So far as the Advocates on the rolls of the State Bar Council are concerned, they are subjected to various restrictions as the profession is treated as a noble profession in the country and is not treated as a trade or a business. However, so far as Lawyers and Law Firms from outside the Territory of India are concerned, they are treating it as a business venture, a trade and a money spinner rather than a noble profession which is intended to serve the society and the social cause. 17. I respectfully submit, so far as the Lawyers in India are concerned, they are prohibited from advertising, canvassing and soliciting work. The Bar Council of India has recently relaxed the above restrictions to a slight extent that Advocates are entitled to have and maintain a Website for their own only for the purpose of identifying themselves and for the public to know the services which they would render and the types of cases which they would deal with. No one is permitted either through print media or through digital or electronic media or in any other form to canvass or solicit work or market the profession. On the other hand, the Respondents 9 to 40 herein, who have been impleaded as firms practicing the profession of law in India by having Offices in India or in neighboring countries, are advertising through their websites about their capabilities, claims and they canvass and solicit works by assuring results. A reading of the contents of the Websites of various Law Firms would show that they are treating it as nothing short of a trade or business far different from the noble profession as it is seen and practiced in the country by the lawyers in India. Even though Indian lawyers are allowed to practice in U.K and U.S.A, the same is subject to enormous conditions and restrictions and subjecting themselves to further tests in the respective countries. As such, it is not reciprocity in the real sense of the word. Entry of Indian lawyer is actually not permitted. 18. At any rate, so far as the law as it stands today in the country, assuming for the purpose of argument without admitting that there is reciprocity between U.K, U.S.A and India and that Indian lawyers are permitted to practice the profession of law in U.K. and U.S.A, even then lawyers from U.K. or U.S.A. or firms from the said countries are not entitled to practice the profession of law in India since the law degree conferred by any University outside the Territory of India has not been recognized by the Bar Council of India nor has the Bar Council of India framed any rules and regulations under Sec. 42(2) of the Act permitting persons other than Indian lawyers from practicing the profession of law in India. Until the same is made, there is absolutely no scope for any foreign lawyer or foreign law firm to practice the profession of law in the country. I respectfully submit, a faint attempt is being made by the foreign law firms to contend as though practice of law would have a restricted meaning of arguing in Courts and would not carry within the restriction of chamber practice or practice in non- litigation fields and in commercial fields. The same is misconceived. The Advocate Act does not regulate the practice of Advocates in Courts alone. It regulates the practice of the profession of law by Advocates. It takes out of its hold not only practice in Courts and in litigation, but also various other forms of service in the legal profession such as opinion, advice, drafting, chamber work, documentation, arbitration, mergers, take-overs, acquisitions, incorporations, so on and so forth. I respectfully submit, in spite of the above said restrictions, the Respondents 9 to 40 are carrying on practice in the profession of law in the country in utter disregard to the rule of law. They have not got any permission either from the Govt. of India or from the Bar Council of India or from the Bar Council of any State or from the Income Tax Department or the Reserve Bank of India for transacting business within the country and repatriating funds out of the country. The fact that they are practicing the legal profession in India is abundantly clear and apart from the materials placed by the Petitioner in the Typed set of papers, which would show that they not only make tall claims about their capabilities, but also solicit work and canvass for work, much against the ethics which are to be followed by the legal professionals in the country. 19. I therefore submit that the issue being raised is not just that of opening up of the Indian legal sector to English law firms, but also reciprocally permitting Indian lawyers and law firms to gain free and unhindered access to enter the UK and practice law as a profession. I say that for what is required is not just dialogue between private bodies such as the Law Society and the Bar council of India, but also between the two governments. This will include the participation of the Law Society and the Bar Council of India as the representative bodies of the profession in the two countries. Any agreement reached must result in reciprocal rights being granted to lawyers and legal professionals of both countries being able to live practice and earn in each other's jurisdiction. The reciprocity should be based on the percentage basis and not based on numbers. If foreign law firms are allowed to exploit 5% of Indian legal market in reciprocity the Indian lawyers should be allowed to exploit 5%of the respective countries legal market. 20. I state that if the foreign law firms been allowed to practice in India or to render legal assistance/advice and/or draft/settle documents, participate in negotiations, transactions and settlements of documents; the same should be so allowed only against a reciprocal on the basis of mutual arrangement whereby the Indian lawyers are allowed to live and practice in those foreign countries, to the legal practitioners of which the Indian legal market is opened for legal practice, Further a 'transparent and fair' exam ought to be devised for foreign lawyers to clear before obtaining a license to practice in India. It is pertinent to ensure that existence of safeguards and mutual arrangements for Indian lawyers before allowing foreign lawyers entry into subcontinent. It is equally important that immigration clearances are made easy for Indian lawyers in exchange for permitting foreign law firms to set up practice in India. 21. I respectfully submit, the practice of the legal profession by the said Law Firms or any foreign lawyer is illegal and impermissible and immediate action should be taken as against the concerned persons and firms. 22. I respectfully submit, in the interest of maintaining the purity of the legal profession and to ensure that the rule of law is strictly enforced, group of lawyers who formed themselves in to an association called “Association of Indian Lawyers” of whom I am also one, made a detailed representation on 18.1.2010 to the Respondents 1 to 8 herein bringing to their the notice the practice of the legal profession by the Respondents 9 to 40 in the country and requested the authorities concerned to immediately swing into action, prevent the violation of rule of law and to strictly enforce the rule of law. 23. I respectfully submit, the representation which was made by me has been duly received by the Respondents 1 to 8 as could be seen from the proof of delivery. Yet, no action has been taken as against the persons who are violating the law and are practicing the profession of law in India in utter disregard to the rule of law. 24. In the above circumstances, being left with no other alternative effective remedy and in the larger interest of the Indian citizens and to prevent them from being exploited by the foreign law firms and foreign lawyers who are not subjected to the provisions of the Advocates Act or any disciplinary control by the authorities under the Advocate Act, I am constrained to file this Writ Petition in this Hon’ble Court under Article 226 of the Constitution of India seeking appropriate orders. 25. I respectfully submit, the Respondents 1 to 8 herein are duty bound to enforce the provisions of the Advocates Act, 1961 and to prohibit any violation therefor, they have a statutory duty in them. As they are remaining mute spectators without taking appropriate action against the erring foreign law firms and foreign lawyers as warranted in law, I am constrained to file this Writ Petition seeking a Writ of Mandamus. 26. I respectfully submit, prima facie case and balance of convenience are in my favour. The Respondents 9 to 40 herein have no right to practice the profession of law in India. Unless suitable interim orders are granted, grave prejudice and irreparable loss and injury would be caused to the Petitioner and other lawyers who have taken up the profession of law as a noble profession in India. For the reasons stated above, it is humbly prayed that this Hon’ble Court may be pleased to grant an order of interim injunction restraining the Respondents 9 to 40, their men, agents, servants or any other person or persons authorized by them or claiming through them, from in any manner practicing the profession of law, both in Court of Law, tribunals, etc and in dealing with non- litigation, commercial transactions within the territory of India, pending disposal of the above Writ Petition and thus render justice. For the reasons stated above, it is humbly prayed that this Hon’ble Court may be pleased to issue a Writ of Mandamus or any other appropriate writ, order or direction in the nature of Writ of Mandamus directing the Respondents to take appropriate action against the Respondents 9 to 40 or any other Foreign law firms or foreign lawyers who are illegally practicing the profession of law in India and prohibit them from having any legal practice either on the litigation side or in the field of non-litigation and commercial transactions in any manner within the territory of India, and pass such further or other orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case and thus render justice. Solemnly affirmed at Chennai this the 18th day of March 2010