Foreign Lawyers Barred from Cross-Examining Witnesses in India, Limited to Observing Proceedings
In a landmark decision, the Kerala High Court, under the judgment of Justice Mohammed Nias C. P., has reaffirmed the restrictions imposed on foreign lawyers concerning their role in litigious practices within India. The case, "Hari Maddali v. Sharestates," centered on whether foreign counsel could cross-examine a witness in proceedings before a Commissioner appointed under Order XXVI of the Code of Civil Procedure, 1908. The court ruled that foreign lawyers are prohibited from engaging in such activities, which are reserved for advocates enrolled under the Advocates Act, 1961.
The judgment came as a response to a request for international judicial assistance issued by the United States District Court for the Eastern District of New York. The U.S. Court sought to allow foreign counsel to cross-examine a witness in India as part of evidence collection for a civil case involving allegations of fraud, breach of contract, and other charges.
Justice Nias emphasized that while foreign counsel could observe proceedings, cross-examining witnesses is considered a litigious act, which is exclusively reserved for Indian advocates. The court further noted that the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters allows for special procedures to be followed only if they are not incompatible with Indian law.
The court referred to several statutory provisions, including Sections 29, 32, and 33 of the Advocates Act, 1961, and the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022, which underline the limitations on foreign legal practitioners in India. The judgment also referenced precedents set by the Supreme Court and various High Courts, asserting the exclusive rights of Indian advocates to practice law in litigious matters.
The decision underscores India's stance on maintaining strict controls over foreign legal practice, aligning with the principles of reciprocity and adherence to national legal standards. This ruling is expected to have significant implications for international legal cooperation, particularly in cases involving cross-border litigation.
Bottom line:-
Foreign lawyers cannot conduct examination or cross-examination of witnesses before a Commissioner appointed under Order XXVI of the Code of Civil Procedure, 1908. Such acts fall under litigious practice reserved exclusively for advocates enrolled under the Advocates Act, 1961.
Statutory provision(s): Advocates Act, 1961 Sections 29, 32, 33, Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022, Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, Code of Civil Procedure, 1908 Order XXVI
Hari Maddali v. Sharestates, (Kerala) : Law Finder Doc id # 2940845
