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The story of JGLS’ S. Korean student who wanted to take the Indian bar exam last year, hoping for Advocates Act reciprocity

Liberalisation: Remains in limbo
Liberalisation: Remains in limbo

A South Korean citizen who graduated from JGLS Sonepat last year is facing a dead end at the Bar Council of India (BCI), on her application to take the All India Bar Exam (AIBE). She took admission to JGLS relying on the reciprocity clause in the Advocates Act 1961.

2015 graduate Yoomin Lee, who pursued the three year LLB program at JGLS, wrote to the BCI on 22 April 2015 to request its approval to take the bar exam.

She cited Section 24 of the Act in support of her case.

Section 24 gives the BCI discretion to allow a foreign citizen to practice law in India if the foreign national’s home country allows Indian citizens to practice law in that country.

Lee wrote in her April 2015 letter:

Though I am a foreigner from South Korea, India has always been my second home which has significantly influenced my hopes and dreams of life. I came to India for the first time in 2000 due to my father’s business and lived in Chennai for 4 years.

After I went back to Korea and graduated high school, I decided to return to India and study again. Since 2009, I graduated Stella Maris College, Chennai and am currently studying law at Jindal Global Law School, expected to graduate in August, 2015.

I know that there is no precedent of accepting foreigners to sit for the Bar Council Exam in India. However, after carrying out many inquiries and research, I have found one provision from the Advocates Act, 1961 which could support my stand.”

Advocates Act and Attorney-At-Law Act

Under the Advocates Act the BCI may consider the case of a foreign national if that foreigner’s home country allows Indian citizens to practice law in its jurisdiction. Section 24 reads:

Persons who may be admitted as advocates on a State roll.— (1) Subject to the provisions of this Act, and the rules made thereunder, a person shall be qualified to be admitted as an advocate on a State roll, if he fulfils the following conditions, namely:— (a) he is a citizen of India:
Provided that subject to the other provisions contained in this Act, 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.

Lee also submitted to the BCI the South Korean ministry of justice’s reply to her that for a person to practice law in Korea it was not necessary for such aspirant to be a Korean national, provided the aspirant holds an undergraduate degree in law from a university recognised by the Korean Attorney-At-Law Act.

The South Korean ministry produced the relevant provision in its reply, as follows:

According to Article 4(3) of the ‘Attorney-At-Law Act’ which defines ‘Qualifications for Attorneys-at-Law’, states that ‘any person who has passed a bar examination shall be qualified to be an attorney-at-law’.

Moreover, Article 5(1) of the ‘National Bar Examination Act’ which regulates ‘Qualifications for Application’, specifies that ‘A person who intends to apply for the Examination shall have earned a juris doctorate degree from a professional law school under Article 18(1) of the Act on the Establishment and Management of Professional Law Schools: Provided, That a person may apply for the Legal Ethics Examination prior to conferment of a Juris doctorate degree from a professional law school, as prescribed by Presidential Decree’.

Thus, Article 22 of the ‘Act on the Establishment and Management of Professional Law Schools’ which states ‘Requirements for Admission’, provides that ‘Any person who has an undergraduate degree or who is deemed to have equivalent academic education under Acts and subordinate statutes (hereinafter referred to as "person with undergraduate degree"), may be admitted to professional law schools’. And it shows that the law does not limit the qualification for admission to law schools and bar examination only to Korean Nationals.

Therefore, any foreigner could be admitted to the bar if one graduates a law school and passes the bar examination in Korea.

Not impossible but difficult

Foreign nationals are not allowed to practice law in India, but after liberalisation’s staunchest opponent - the Society of Indian Law Firms (SILF) – has now said it was open to the idea of liberalisation, according to several accounts the BCI has been tasked with drafting regulations that will govern foreign lawyers’ entry to India after talks with the Law Society of England & Wales.

Lee told Legally India that on personally visiting the BCI in September 2015, a source in the regulator informed her that hers was not an easy case because it had no precedent in India and to allow her would be akin to making a new rule.

“It will take time but it is not an impossible thing,” the source told her, she said.

Lee commented: “I don’t know whether they are considering this issue at this time as well because it has been a year and I don’t get any reply or any email from them.”

Lee is currently pursuing her PhD in Korean law in South Korea and had studied sociology in India for her undergraduate course. She said that she was aware of the Indian restrictions to foreign lawyers, before taking admission to JGLS, but had found Section 24 and believed that the provision on reciprocity would apply to her.

“I talked to the vice chancellor in the first year of JGLS. He said that I am still in the first year and I think he didn’t actually think that I could graduate. He didn’t think of this issue as a very important and essential thing to consider. In the end I talked to him again, so then he thought its serious now. He wrote a recommendation letter and talked to BCI people but it was too late and too short a period to consider,” she said.

“I couldn’t write my bar exam in March.”

Until April 2015 the BCI was fighting its appeal in the Supreme Court against the Madras high court verdict that had allowed liberalisation in the Indian legal service industry.

We have reached out to BCI chairman Manan Kumar Mishra for comment.

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