A Division Bench in the Delhi High Court, of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora issued notice to the BCI and the Central government after hearing the petitioners and the bar body at length.
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NEW DELHI: The Delhi High Court served notice Today (09 Feb 2024), to the Bar Council of India (BCI), the Union Ministry of Law and Justice, and the Ministry of Home Affairs regarding a petition contesting the BCI’s decision permitting the entry of foreign law firms into India.
The entry of foreign law firms into India has sparked a contentious debate, underscored by a petition challenging the Bar Council of India’s (BCI) decision to allow foreign lawyers and law firms to practice in the country. This move has ignited concerns over the sanctity of the legal profession and the potential impact on domestic lawyers, particularly the younger demographic.
A Division Bench of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora issued notice to the BCI and the Central government after hearing the petitioners and the bar body at length.
“Issue notice. They (BCI) are permitted to file their counter affidavit in four weeks, rejoinder thereafter. Matter listed for further hearing on April 24,”
-the order said.
During the hearing, the Court also asked how the BCI could get over the 2018 apex court judgment in AK Balaji case which had held that the foreign law firms with foreign lawyers cannot set up offices in India.
“How do you get out of the judgement of the Supreme Court,”
–the bench asked.
Petitioners have raised alarm bells, arguing that the legal profession in India should not be-
“taken over by foreign market forces to defeat the ends of justice nor justice dispensation system be subjugated to such forces.”
The crux of their argument hinges on the preservation of justice and the protection of the domestic legal ecosystem from being overwhelmed by international entities. This sentiment is echoed in the plea, which voices opposition from various quarters of the legal community, including Bar Associations, NGOs, and individual advocates. They argue against the registration of foreign lawyers under the Advocates Act, 1961, which would entitle them to appear in courts, arbitrations, tribunals, and other quasi-judicial authorities within India.
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Senior Advocate Rakesh Tiku, representing the petitioners, articulated concerns over the BCI’s authority, suggesting that in its bid to regulate the legal profession, the BCI should not overstep the bounds set by the Advocates Act. Tiku’s argument,
“Foreign firms have been allowed to open law offices. The Advocates Act does not permit it. You may amend the law, but in exercise in garb of regulation, you cannot do something that the Act does not permit,”
underscores the perceived overreach. He further emphasized that the distinction between litigation and non-litigation practices is irrelevant, asserting that practice in India requires enrollment in the State roll, irrespective of the nature of the legal work.
The debate also touches on the principle of reciprocity and the eligibility criteria for practicing law in India, which currently restricts enrollment to Indian citizens. Tiku’s rhetorical question,
“The Advocates Act says the person who has to be enrolled has to be a citizen. Question is, can a person, who is not a citizen, by virtue of power under the Act to regulate, be allowed to practice?”
challenges the legal framework allowing foreign practitioners into the Indian legal market.
This controversy is not without precedent. The 2018 Supreme Court judgment in the AK Balaji case serves as a legal landmark, where it was decided that while foreign law firms and lawyers cannot establish offices in India, they are permitted to offer advice on foreign law on a “fly in fly out” basis for temporary, casual purposes. This nuanced stance highlights the complex interplay between national legal policies, the global legal market, and the imperative to safeguard the interests of the domestic legal community.
The Court then proceeded to order BCI to file its response and posted the case for further consideration on April 24.
As the debate unfolds, the legal community and stakeholders await further developments, which will undoubtedly have profound implications for the future of legal practice in India. The discourse around the entry of foreign law firms encapsulates broader questions about globalization, legal sovereignty, and the dynamics of international legal practice, marking a pivotal moment in the evolution of India’s legal landscape.
CASE TITLE:
Narendra Sharma and Ors v. Bar Council of India and Ors.
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