The Kerala High Court has held that foreign lawyers cannot examine or cross-examine witnesses before a court-appointed Advocate Commissioner in India while executing a Letter of Request issued by a foreign court under the Hague Convention, ruling that such proceedings amount to the practice of law in India and are reserved exclusively for advocates enrolled under the Advocates Act, 1961.
Justice Mohammed Nias C.P. was deciding whether US counsel representing defendants in a civil suit pending before the United States District Court for the Eastern District of New York could be permitted to cross-examine an Indian witness before an Advocate Commissioner appointed by the High Court for execution of a Letter of Request issued under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.
The petitioner argued that Article 9 of the Hague Convention mandates that execution of a Letter of Request must conform to the law of the executing State. It contended that the Advocates Act and the Bar Council of India Rules, 2022 permit foreign lawyers to practise only in limited non-litigious areas and prohibit them from appearing before Indian courts or authorities empowered to record evidence on oath.
Rejecting the respondents’ plea to invoke Section 32 of the Advocates Act, the Court relied on the Supreme Court’s ruling in Bar Council of India v. A.K. Balaji, (2018) 5 SCC 379, and observed that:
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“It is trite that an Advocate Commissioner, executing a warrant issued by a Court, is deemed to be a civil court for the attendance and examination of witnesses and the Courts have consistently held that the commissioner acts as the “eyes and ears” of the Court and “an extended arm and agent” of the Court and, in fact, “a projection of the Court” for a particular purpose whose report in evidence forms part of the record. The recording of evidence before a Commissioner is, indeed, a litigious act forming part of the practise of law in India, from which the foreign lawyers stand excluded. The examination of a witness before the Commissioner under Order XXVI of the Code of Civil Procedure clearly falls outside of each of the permissible categories under the BCI Rules.”
It held that examination and cross-examination before a Commissioner appointed under Order XXVI of the Code of Civil Procedure fall squarely within the domain of litigation practice reserved for enrolled advocates. The Court further held that the discretion under Section 32 of the Advocates Act cannot be exercised to circumvent the statutory prohibition contained in the Advocates Act and the BCI Rules. It noted that permitting foreign lawyers to conduct examination of witnesses would amount to achieving indirectly what the law expressly prohibits directly.
Referring to decisions of the Bombay, Telangana, Andhra Pradesh and Karnataka High Courts on similar issues, the Court observed that Indian courts have consistently permitted foreign lawyers only to attend or observe deposition proceedings, while requiring examination and cross-examination to be conducted by Indian advocates.
Accordingly, the High Court declined the request to allow the US counsel to examine or cross-examine the witness. However, it permitted the foreign lawyers and representatives to attend, observe and participate in the proceedings, while directing that the actual examination and cross-examination shall be conducted only by the respective Indian counsel appearing for the parties
The matter is posted for August 13, 2026.
