Foreign lawyers cannot cross-examine witness before advocate commissioners: Kerala High Court

The Kerala High Court recently clarified the permissible scope of foreign lawyers' involvement in evidence-gathering proceedings before advocate commissioners in India. In *Sharestates, Inc v Prasad Choorakuzhiyil Gopalan & ors*, the Court held that while foreign lawyers may attend, observe, and participate in such proceedings, they are expressly prohibited from examining or cross-examining witnesses. This ruling underscores the Indian legal framework's strict adherence to the Advocates Act, 1961, which reserves the 'practice of law' for advocates enrolled in India. The decision, rooted in the Supreme Court's pronouncements in *Bar Council of India v. A.K. Balaji*, has significant implications for international litigants seeking to gather evidence in India under conventions like the Hague Evidence Convention, necessitating the engagement of local counsel for active litigation functions.

The landscape of international litigation frequently necessitates the gathering of evidence across jurisdictional borders, often engaging the intricate interplay between domestic legal frameworks and international conventions. A recent pronouncement by the Kerala High Court in *Sharestates, Inc v Prasad Choorakuzhiyil Gopalan & ors* has provided crucial clarity on the role and limitations of foreign lawyers in such cross-border evidence collection within India. The Court unequivocally held that foreign lawyers are precluded from conducting the examination or cross-examination of witnesses before an advocate commissioner appointed by Indian courts.

This ruling, delivered by Justice Mohammed Nias C.P., arose from an application in a proceeding initiated by an American company, Sharestates Inc., seeking the execution of a Letter of Request from a United States district court under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. While acknowledging the spirit of international judicial cooperation, the Court emphasized that the recording of evidence constitutes an integral part of the 'practice of law' in India, a domain exclusively reserved for advocates entitled to practice in the country. The decision, however, carves out a distinction, permitting foreign lawyers to attend, observe, and generally 'participate' in the proceedings, thereby balancing international comity with domestic regulatory imperatives.

This article will delve into the background of this significant judgment, examining the statutory and doctrinal underpinnings that informed the Kerala High Court's decision. It will analyze the Court's reasoning, particularly its reliance on the Advocates Act, 1961, and the Supreme Court's precedent in *Bar Council of India v. A.K. Balaji*. Finally, it will discuss the practical implications for legal practitioners and foreign litigants navigating the complexities of evidence gathering in India.

The legal framework governing the practice of law in India is primarily enshrined in the Advocates Act, 1961. This Act consolidated the law relating to legal practitioners and provided for the constitution of Bar Councils, establishing a unified legal profession. Crucially, Sections 29 and 33 of the Advocates Act, 1961, stipulate that only advocates enrolled under the Act are entitled to practice the profession of law before any court or authority in India. The Supreme Court of India, in the landmark case of *Bar Council of India v. A.K. Balaji* (2018) 5 SCC 379, affirmed that the expression “to practise the profession of law” encompasses both litigious and non-litigious matters, and foreign law firms or lawyers cannot practice law in India without complying with the Advocates Act and the Bar Council of India Rules.

In the context of evidence collection, the Code of Civil Procedure, 1908 (CPC), particularly Order XXVI, empowers Indian courts to issue commissions for various purposes, including the examination of witnesses. An advocate commissioner, typically an enrolled advocate, is appointed by the court to record evidence, acting as an extension of the court itself. This mechanism is frequently employed in domestic litigation and has also become a vital tool for fulfilling requests under international conventions, such as the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (1970).

India acceded to the Hague Evidence Convention on February 7, 2007, aiming to facilitate judicial cooperation and streamline the process of obtaining evidence in civil or commercial matters from foreign jurisdictions. Under this Convention, a foreign court can issue a Letter of Request to the Central Authority in India (the Ministry of Law and Justice, and all High Courts) to obtain evidence from a witness residing within India. The present case of *Sharestates, Inc v Prasad Choorakuzhiyil Gopalan & ors* arose precisely from such a Letter of Request, where a US District Court sought documentary and oral evidence from an Indian resident for an ongoing civil suit in the US. The Kerala High Court had appointed an advocate commissioner to record this evidence, leading to the pivotal question of foreign counsel's direct involvement.

The core of the Kerala High Court's decision in *Sharestates, Inc v Prasad Choorakuzhiyil Gopalan & ors* rests on the interpretation of what constitutes the 'practice of law' under Indian statutes. Justice Mohammed Nias C.P. explicitly stated that the recording of evidence before an advocate commissioner is a 'litigious act forming part of the practise of law in India'. This interpretation aligns squarely with the principles laid down by the Supreme Court in *Bar Council of India v. A.K. Balaji*, which established that foreign lawyers cannot practice Indian law, whether litigious or non-litigious, without proper enrollment under the Advocates Act, 1961.

The Court's reasoning is further bolstered by the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022. These rules, framed subsequent to the *A.K. Balaji* judgment, specifically prohibit foreign lawyers from appearing before courts, tribunals, or any authority empowered to record evidence on oath. By classifying examination and cross-examination of witnesses as direct engagement in the practice of law, the Kerala High Court reinforces the regulatory control exercised by the Bar Council of India over the legal profession within the country. The distinction drawn between 'examining/cross-examining' (prohibited) and 'attending, observing, and participating' (permitted) is crucial. While foreign counsel cannot directly question witnesses, their presence allows them to monitor the proceedings, instruct their Indian counterparts, and ensure that the evidence-gathering aligns with the requirements of the foreign litigation.

This ruling highlights a potential tension between the facilitative objectives of the Hague Evidence Convention and the sovereign right of a nation to regulate its legal profession. Article 9 of the Hague Convention permits a foreign court to request a particular procedure for recording evidence. However, the Kerala High Court clarified that such a procedure could only be followed if it is consistent with Indian law. The Court implicitly prioritizes the domestic regulatory framework, particularly the Advocates Act, 1961, over any perceived broader interpretation of 'participation' under the Convention that might infringe upon the exclusive domain of enrolled Indian advocates. This approach ensures that while India upholds its international treaty obligations, it does so without compromising the integrity and regulatory standards of its own legal system. The decision underscores that international cooperation must operate within the confines of national legal sovereignty, particularly concerning the practice of regulated professions.

The Kerala High Court's decision in *Sharestates, Inc v Prasad Choorakuzhiyil Gopalan & ors* serves as a critical reminder for legal practitioners engaged in cross-border litigation involving India. It firmly establishes that active litigious functions, such as the examination and cross-examination of witnesses before an advocate commissioner, are exclusively reserved for advocates enrolled under the Advocates Act, 1961. Foreign lawyers, while permitted to attend, observe, and participate in a broader sense, must refrain from direct engagement in these core evidentiary processes.

For attorneys advising foreign clients seeking to gather evidence in India, this ruling necessitates a clear strategy: the mandatory engagement of qualified Indian counsel to conduct the actual examination and cross-examination of witnesses. Foreign lawyers can collaborate closely with their Indian counterparts, providing instructions and guidance, but the forensic skill and direct questioning must be executed by those entitled to practice before Indian courts and authorities. This judgment reinforces India's consistent stance on regulating its legal profession, balancing international judicial assistance with the imperative of maintaining domestic professional standards. Practitioners should remain vigilant for any further clarifications or guidelines from the Bar Council of India regarding the scope of 'participation' by foreign lawyers in such proceedings.