Kerala High Court Restricts Foreign Lawyers in Legal Proceedings
In a significant ruling, the Kerala High Court has declared that foreign lawyers are not permitted to examine or cross-examine witnesses in proceedings before an advocate commissioner appointed by Indian courts. The decision was rendered on Monday in the case of Sharestates, Inc v Prasad Choorakuzhiyil Gopalan & ors, where Justice Mohammed Nias CP emphasized that the recording of evidence is a component of litigation and is allowable only by advocates authorized to practice in India.
The Court, however, noted that while foreign lawyers cannot directly conduct examinations, they are permitted to attend, observe, and participate in the proceedings. This ruling came during the adjudication of an application initiated by Sharestates Inc., an American company, which sought the execution of a Letter of Request issued by a United States district court. The request was for recording evidence from an Indian witness residing within the jurisdiction of the Kerala High Court.
Adherence to the Hague Convention
The U.S. court’s request was made under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, aiming to procure documentary and oral evidence from an Indian resident for use in an ongoing U.S. civil suit. Following this, the Kerala High Court appointed an advocate commissioner to record the witness’s testimony. However, the respondents, who are defendants in the U.S. proceedings, sought permission for their U.S. counsel to participate in the examination and cross-examination of the witness before the commissioner.
The petitioner contested this request, arguing that it would effectively allow foreign lawyers to practice law in India. Justice Nias CP, upon reviewing the submissions, clarified that while Article 9 of the Hague Convention allows a foreign court to request specific procedures for recording evidence, such procedures can only be executed if they align with the laws of the country where the evidence is being recorded.
Compatibility with Indian Law
The Court highlighted that the Letter of Request itself stipulated that the examination should be conducted under the Federal Rules of Civil Procedure of the United States, except where such procedures are inconsistent with Indian law. Drawing attention to the Supreme Court’s decision in Bar Council of India v AK Balaji and the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022 (the BCI Rules), the Court reiterated that foreign lawyers are only permitted to work in limited non-contentious areas in India.
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The BCI Rules explicitly prohibit foreign lawyers from appearing before courts, tribunals, or authorities that are empowered to record evidence under oath. Recording evidence before a court-appointed commissioner under Order XXVI of the Code of Civil Procedure is part of the judicial process and constitutes the practice of law, the Court asserted. The Court further explained that commissioners serve as extensions of the court’s authority when recording evidence, and their reports become part of the judicial record.
Court’s Decision and Future Proceedings
Consequently, the court denied the request for foreign counsel to conduct examinations and permitted them only to observe the proceedings. The matter is scheduled for further consideration on August 13. The petitioner was represented by Advocates Ramola Nayanpally, Parvathy Kottol, Pranoy Harilal, Giridhar Krishna Kumar, and Jaishwal Harshit Chetan Kumar, while Advocates P Prijith, Sidharth A Menon, and Thomas P Kuruvilla appeared for the respondents. Advocate Commissioner M Shajna was appointed by the court. [Read Order]
