Hot Off The PressNews

The National Human Rights Commission, NHRC has taken suo motu cognizance of a media report supported with photograph that as many as 20 persons including the Civic Agency staff and the lawyers received head injuries in the alleged police action in Howrah, West Bengal on the 24th April, 2019. Reportedly, demanding action against the police personnel, the Bar Council of West Bengal observed black day throughout the State today and has resolved to cease the work till April 29th in solidarity with the lawyers of Howrah. According to media reports, the incident happened following the lawyers’ faceoff with the Howrah Municipal Corporation staff over parking.

The Commission has issued a notice to the Director General of Police, West Bengal calling for a detailed report in the matter, within four weeks including action taken against the delinquent police personnel and health status of the victims.

It has observed that the contents of the news report, if true, raise the serious issue of violation of human rights of the victims, who have sustained injuries in the incident. Apparently, the police personnel did not deal with the situation in a proper manner which resulted in humiliation and physical injuries to the victims.

According to the media report that the incident was triggered after and the elderly lawyer was turned away by the Guard of the civic headquarters on Mahatma Gandhi Road in Howrah when he tried to park his vehicle in the civic agency’s compound. Thereafter, the lawyers and the civic body staff fought for hours as many lawyers joined the protest against the guard. The civic staff, however, claimed that they were attacked first. Both sides, as mentioned in the news report, pelted stones and bricks at each other before the police intervened and chased away the lawyers.


[Dated: 26-04-2019] 

NHRC

Appointments & TransfersNews

President appoints the following two Judicial Officers to be the Judges of Rajasthan High Court while exercising the powers conferred by clause (1) of Article 217 of Constitution of India :

  • Abhay Chaturvedi
  • Narendra Singh Dhaddha

The above mentioned, in order of their seniority, with effect from the date they assume charge of their respective offices.


[Order dt. 15-04-2019]

Ministry of Law and Justice

Case BriefsSupreme Court

Supreme Court: In a crucial verdict, the bench of AK Goel and UU Lalit, JJ held that foreign law firms/companies or foreign lawyers cannot practice profession of law in India either in the litigation or in nonlitigation side.

The Court explained:

“practicing of law includes not only appearance in courts but also giving of opinion, drafting of instruments, participation in conferences involving legal discussion. These are parts of non-litigation practice which is part of practice of law. Scheme in Chapter-IV of the Advocates Act makes it clear that advocates enrolled with the Bar Council alone are entitled to practice law, except as otherwise provided in any other law. All others can appear only with the permission of the court, authority or person before whom the proceedings are pending. Regulatory mechanism for conduct of advocates applies to non-litigation work also. The prohibition applicable to any person in India, other than advocate enrolled under the Advocates Act, certainly applies to any foreigner also.”

“Fly in and fly out” basis:

  • Visit of any foreign lawyer on fly in and fly out basis may amount to practice of law if it is on regular basis. A casual visit for giving advice may not be covered by the expression ‘practice’.
  • In case of a dispute whether a foreign lawyer was limiting himself to “fly in and fly out” on casual basis for the purpose of giving legal advice to their clients in India regarding foreign law or their own system of law and on diverse international legal issues or whether in substance he was doing practice which is prohibited can be determined by the Bar Council of India.
  • Bar Council of India or Union of India will be at liberty to make appropriate Rules in this regard including extending Code of Ethics being applicable even to such cases.

Bar on conducting arbitration in India:

  • There is no absolute right of the foreign lawyer to conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration.
  • If the Rules of Institutional Arbitration apply or the matter is covered by the provisions of the Arbitration Act, foreign lawyers may not be debarred from conducting arbitration proceedings arising out of international commercial arbitration in view of Sections 32 and 33 of the Advocates Act. However, they will be governed by code of conduct applicable to the legal profession in India.
  • Bar Council of India or the Union of India are at liberty to frame rules in this regard.

Services provided by BPO Companies:

  • BPO companies providing range of customized and integrated services and functions to its customers may not violate the provisions of the Advocates Act, only if the activities in pith and substance do not amount to practice of law. The manner in which they are styled may not be conclusive.
  • If their services do not directly or indirectly amount to practice of law, the Advocates Act may not apply. This is a matter which may have to be dealt with on case to case basis having regard to a fact situation

The Court was hearing the appeal arising from the Judgment of Madras High Court in A.K. Balaji v. Government of India, 2012 SCC OnLine Mad 723 : AIR 2012 Mad 124 and Bombay High Court in Lawyers Collective v. Bar Council of India, 2009 SCC OnLine Bom 2028 : 2010 (2) Mah LJ 726 on the issue of whether foreign law firms/lawyers are permitted to practice in India. [Bar Council of India v. A.K. Balaji, 2018 SCC OnLine SC 214, decided on 13.03.2018]

Case BriefsHigh Courts

Delhi High Court: Taking note of the fact that the legal practitioners are under a genuine doubt whether they require to get themselves registered under the Central Goods and Service Tax Act 2017 (CGST Act), the Delhi Goods and Service Tax Act 2017 (DGST Act) and the Integrated Goods and Services Tax Act, 2017 (IGST Act), the Court directed that that no coercive action be taken against any lawyer or law firms for non-compliance with any legal requirement under the CGST Act, the IGST Act or the DGST Act till a clarification is issued by the Central Government and the Govt. of NCT of Delhi (GNCTD) and till further orders.

The matter was brought before the Court by Mr. J.K. Mittal, advocate, who contended that he provides legal services including consultancy, opinion, drafting, appearances before Courts etc. and although he has an office only in Delhi, he represents his clients throughout the country before various High Courts and Tribunals outside Delhi. The petitioner had challenged the validity of the Notifications issues by the Central Government and the GNCDT for being violative of the Central Goods and Service Tax Act 2017 (CGST Act), the Delhi Goods and Service Tax Act 2017 (DGST Act) read with Article 279 A of the Constitution of India. He has also challenged the constitutional validity of Section 9 (4) of CGST Act, Section 5(4) of The Integrated Goods and Services Tax Act, 2017 (IGST Act) and Section 9 (4) of DGST Act.

The division bench of S. Muralidhar and Pratibha M. Singh, JJ noticed that as of date there is no clarity on whether all legal services (not restricted to representational services) provided by legal practitioners and firms would be governed by the reverse charge mechanism and if all legal services are to be governed by the reverse charge mechanism than there would be no purpose in requiring legal practitioners and law firms to compulsorily get registered under the CGST Act, IGST Act and/or DGST Act. Those seeking voluntary registration would anyway avail of the facility under Section 25 (3) of the CGST Act (and the corresponding provision of the other two statutes).

The Court further clarified that any lawyer or law firm that has been registered under the CGST Act, or the IGST Act or the DGST Act from 1″ July, 2017 onwards will not be denied the benefit of such clarification as and when it is issued. Listing the matter to be taken up on 18.07.2017, the Court said that if the Central Government and GNCDT fail to give an appropriate clarification by the next date, the Court will proceed to consider passing appropriate interim directions. [JK Mittal & Company v. Union of India, 2017 SCC OnLine Del 9087, order dated 12.07.2017]