Enrolling Korean National To Delhi Bar Council- BCI Asks State Bar Councils For Urgent Comments On The Issue
In a letter dated September 13, 2022, the Bar Council of India through its Secretary Srimanto Sen has urged all the State Bar Councils to send their comments/views/opinion on the issue of admitting a Korean national to the State Bar Council of Delhi after having graduated in law from an Indian University.
The Council in its Council Meeting dated August 6, 2022, had passed a resolution for consideration, approval, views, and opinions of State Bar Councils and through them of the Bar Association pertaining to the issue.
The Council has urged that since the matter is listed before the Delhi High Court on September 21, 2022, the comments of the members should reach the office of the BCI on or before September 16th or 17th.
The matter Mr. Daeyoung Jung v. Bar Council of India & Anr. is currently placed before the Delhi High Court vide Item No. 216/2022.
The issue pertains to Mr. Daeyoung Jung, a Korean national who obtained a law degree from an Indian Law University and sought enrolment in State Bar Council of Delhi. As per him, an Indian National who obtains a law degree from a Korean Law University will be entitled to practice law in Korea.
Mr. Daeyoung Jung has further stated that citizens of India who are duly qualified by interpreting duly qualified as duly qualified by way of obtaining a Korean law degree are permitted to practice law in Korea and invited attention of Articles 4 and 5 of the Attorney at Law Act and Articles 5 and 6 of the National Bar Exam Act.
Mr. Jung also referred to Article 4(3) of the Attorney at Law Act which states the qualifications of Attorney at Law – That a person who has passed the National Bar Examination is eligible to be Attorney at Law.
He has further referred to Article 5 of the Attorney at Law Act – qualifications for applicants and Article 5(1) of the Act which states 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.
Article 18(2) states that the required academic years of the Juris doctorate degree program under paragraph (1) shall be three years.
It was observed that from this it could be inferred that a law graduate who is duly qualified in India can only practice in Korea after he/she obtains a Juris Doctorate Degree (3-year degree) in Korea.
Furthermore, he has also furnished in writing by the President of the Republic of Korean Bar Association stating that there are no nationality restrictions to writing a National Bar Exam and a person who is qualified to be an Attorney at Law can be enrolled in the Korean Bar.
Under the Korean Legal System, an Indian Advocate or any Indian citizen who is duly qualified to be registered under the Advocates Act, 1961 is not permitted to practice law in South Korea and subject to other conditions and restrictions is only permitted to act as Foreign Legal Consultant for a limited purpose.
Not only this no foreign degree of law is recognized for practicing law in South Korea, thus an Indian citizen who is duly qualified to be admitted on rolls and practice law in India, apart from fulfilling other conditions/restrictions will again require to undergo a three-year law degree course from a recognized law College in South Korea before he can sit for the National Bar Examination for admission to the Bar in South Korea.
Under Article 86 of the Attorney at Law Act, the Korean Bar Association is under the supervision of the Ministry of Justice which is the apex regulator of the Korean Legal System. So, it is clear that the Korean Bar Association is not the Apex body or the regulator of the law under the Korean Legal System. Article 86 significantly transpires that the Minister of Justice regulates the functioning of the Korean Legal System.
The Minister of Justice (Korea) stated in his reply to the Petitioner that there is no nationality barrier or restriction on enrollment as Attorney at Law in Korea.
With regard to these aforesaid issues, the Bar Council discussed on the following lines –
It is stated by the Bar that the Indian Constitution under Article 19(1)(g) provides the fundamental right to practice any profession or to carry on any occupation, trade, or business to every citizen of India. It was observed that this fundamental right is not guaranteed to a non-citizen.
Also, under Section 7 of the Advocates Act, the Bar Council of India is duty bound to safeguard the rights, interests, and privileges of Indian Advocates who are presently only Indian citizens. Further Section 24 of the Act was also deliberated upon.
In this context, it was urged that BCI is under no mandate to admit nationals of any other country as Advocates on a state roll in any State Bar Council in India.
Further, it was also stated that it is at the discretion of the Bar Council to admit a foreign national to the State roll or not and it can be denied by giving sufficient reasons, merely the reason that citizens of India who are duly qualified are permitted to practice Law in the other country shall not bind the BCI to admit any foreign national or non-citizen into the Advocates roll.
It has been clearly stated that a law degree from Korea is not per se recognized by the BCI as sufficient to practice law in India.
Additionally, Section 47 of the Advocates Act was also referred to which deals with 'Reciprocity.'
In this regard, it was observed that an Indian law degree holder is not entitled to practice Law in Korea, on the basis of his Indian LLB degree. The basis of reciprocity with any foreign Country is that an Indian law degree holder should be entitled to practice law in the Country and then similarly India could think of allowing that foreign national holding a foreign degree to practice law in India.
It was further discussed that if an Advocate is found guilty of any professional misconduct, he/she can be punished as per the provisions of Section 35 of the Advocates Act, 1961. In this case, the concerned Korean national who is not a citizen of India, if enrolled as an Advocate and engages himself in any professional misconduct under the 1961 Act, and the Rules framed by the Bar Council of India, no action can be taken against him if he leaves India and goes beyond Indian jurisdiction.
It was further deliberated upon that being elected representatives of 21.5 lacs Advocates, BCI owes a huge responsibility to the present Advocates fraternity. The apprehension was that apart from the above provisions, enrolling him would pave the way for the entry of people of foreign origin into the Indian Bar, which has been unprecedented to date. This will open the floodgates to the Indian Bar, and soon citizens of Nepal, Sri Lanka, Nigeria, Bangladesh, etc. may be seen entering the Indian Bar, which may not go down well with the Advocates who are Indian citizens.
The Council stated that the issue requires wider deliberations and discussion with all stakeholders and all the State Bar Councils who are the elected representative body of the Advocates of the State.
BCI stated that the Bar Associations shall also be consulted in this regard. Both the State Bar Councils and Bar Associations of the country shall be asked to furnish their views and opinions on this issue.
The Council has further stressed the need for joint meetings of BCI and the State Bar Councils and Bar Associations to deliberate on the issue urgently.
The BCI has stated that the resolution shall be circulated among all the State Bar Councils and through them to various Bar Associations for their consideration, approval, views, and opinion.