New Delhi: An association of lawyers has opposed the recent move by the Bar Council of India (BCI) to permit foreign lawyers and law firms to practise in certain areas in the country, saying the move represents the statutory body’s “warped priorities” and the interests they serve.
The All India Lawyers’ Association for Justice (AILAJ) said that instead of addressing the pressing concerns raised by advocates, the BCI has done a sudden volte-face on allowing foreign lawyers and firms to practice in India.
“This comes in the context of ongoing negotiations between India and United Kingdom towards a Free Trade Agreement (FTA), has at its centre trade in ‘services’ including the Indian legal service sector and the removal of restrictions for foreign lawyers to practise in India,” the association said.
AILAJ said that the BCI has “eschewed its independent status” and has become an “appendage to the Modi government by sacrificing the interests of the Indian legal fraternity for the sake of the FTA”.
“The argument that this entry is restricted and regulated on a reciprocity basis, is a ruse to soften the initial hard blow that this decision has landed. It is obvious that rather than being controlled, this is a phased entry,” it added.
It added:
“Many questions are left unanswered. What happens to the majority of the Indian lawyers who are already at a disadvantage, due to structural social and economic realities, even when compared to the elite Indian lawyers? Will the small and medium law firms be able to compete with the foreign firms? Will foreign lawyers be allowed to practice without a qualifying exam like AIBE? What was this urgency to bring in these Rules without any prior consultation with the legal fraternity? BCI has much to answer, and should do so before taking any step toward liberalising the Indian legal service sector.”
The full statement is reproduced below.
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Bar Council of India Rules on Foreign Lawyers / Law Firms : A Case of Misplaced Priorities!
On 10.03.2023, the Bar Council of India released the “Bar Council of India Rules For Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022”, permitting foreign lawyers and law firms to practise in areas such as foreign law, international legal issues and arbitration matters in India. This sudden volte-face by the BCI, from its previous stance of opposing such entry, has been done without any consultation with the larger body of advocates across the country. This comes in the context of ongoing negotiations between India and United Kingdom towards a Free Trade Agreement (FTA), has at its centre trade in “services” including the Indian legal service sector and the removal of restrictions for foreign lawyers to practise in India. These BCI Rules are the first step in the liberalisation of the legal sector, the consequences of which are being consciously underplayed in the name of development of law. We must add that the fact that the BCI, rather than address pressing concerns being raised by advocates, has instead chosen to frame these rules, reveals with clarity the warped priorities of the BCI and the interests they serve.
Today, nearly 80% of advocates in High Courts, with up to two years of practice experience, earn only between Rs. 5,000 to 15,000 monthly. In districts, the pay is even less. Women advocates and advocates from Dalit, Adivasis and other socially disadvantaged sections face lack of opportunities and discrimination, and this manifests in their absence in the judiciary, which is dominated by upper castes and men.
In regard to these and other issues, AILAJ initiated a “Campaign for the Social and Economic Justice for Lawyers” in January 2023, which was held in various states across the country. Representations were addressed to the Chief Justice of India and the BCI raising various demands. In view of the discrimination and worsening situation of junior advocates, first- generation advocates, women advocates and advocates from Dalit, Adivasis and other socially disadvantaged sections, we highlighted the need for BCI to frame a comprehensive Welfare Scheme in this regard, including financial assistance and special protections towards these sections of the legal fraternity. We also demanded that “Committee for Gender Sensitisation and against Sexual Harassment” be constituted in every Court complex, as also the demand that an Advocates Protection law be enacted to take account of growing instances of physical assault, murder, illegal arrests and threats from the police and other state agencies. The BCI has not responded to any of these demands that raise issues of daily significance for the majority of lawyers across the country. In this context, the step to liberalise the Indian legal sector is clearly a misplaced priority.
In fact, these Rules go beyond and against the decision of the Supreme Court in Bar Council of India Vs. A.K. Balaji and Ors. [(2018) 5 SCC 379], where the Supreme Court held that foreign law firms/companies or foreign lawyers cannot practice profession of law in India either in the litigation or on the non-litigation side. The Supreme Court however clarified that there was no bar on foreign law firms or foreign lawyers visiting India for a temporary period on a “fly in and fly out” basis for the purpose of giving legal advice to their clients in India regarding foreign law, their own system of law or on diverse international legal issues regarding which the Bar Council of India or Union of India will be at liberty to make appropriate Rules.
The BCI Rules now permit foreign lawyers and law firms to practice in non-litigious matters. The areas of practice of law by a foreign lawyer or Foreign Law Firm shall be laid down by Bar Council of India and if need be, the Bar Council of India may consult the Govt. of India, Ministry of Law and Justice in this regard. While restricting such advocates and firms from appearing before a judicial forum including tribunals and other statutory or regulatory authorities, it permits a large range of other practice. These include transactional work/corporate work on reciprocal basis; doing work or giving advice concerning the laws of the country of the primary qualification; providing legal services to people or bodies having an address or principal office or head office in a foreign country in any international arbitration case which is conducted in India, etc. Morevoer, they permit such lawyers/firms to represent persons/bodies to open up law offices, engage and procure legal expertise of Indian advocates registered as foreign lawyers, or Indian advocates in respect of Indian laws, and to enter into a partnership with one or more foreign lawyers or foreign law firms registered in India under these Rules.
The BCI Rules mandate registration fees of USD 25,000 for foreign lawyers and USD 50,000 for Law Firm or LLP, and renewal fees are USD 10,000 for Lawyer and USD 20,000 for Law Firms. In addition there is an application fees to be accompanied by Security Deposit of USD 15,000 for Individual lawyers and USD 40,000 for Law Firms.
Why this sudden change on the part of the BCI, which has been relentlessly opposing the entry of foreign lawyers and law firms? Given the obvious pressure of the ongoing negotiations for the FTA, under which the opening up of the Indian legal service sector forms a key component, it is fairly certain that this is first step, in a long process of liberalizing the legal service sector as evident from other service sectors. The BCI has eschewed its independent status and become an appendage to the Modi government by sacrificing the interests of the Indian legal fraternity for the sake of the FTA between the UK and India. The argument that this entry is restricted and regulated on a reciprocity basis, is a ruse to soften the initial hard blow that this decision has landed. It is obvious that rather than being controlled, this is a phased entry.
Many questions are left unanswered. What happens to the majority of the Indian lawyers who are already at a disadvantage, due to structural social and economic realities, even when compared to the elite Indian lawyers? Will the small and medium law firms be able to compete with the foreign firms? Will foreign lawyers be allowed to practice without a qualifying exam like AIBE? What was this urgency to bring in these Rules without any prior consultation with the legal fraternity? BCI has much to answer, and should do so before taking any step toward liberalising the Indian legal service sector.
Maitreyi Krishnan, President
Clifton D’ Rozario, General Secretary
