In a significant development on an issue that has been a topic of contention and much discussion amongst the legal fraternity- the entry of foreign law firms in the country, Bar Council of India Chairman Manan Kumar Mishra has written to Prime Minister Narendra Modi and Union Minister of law and Justice in India Ravi Shankar Prasad saying that some bureaucrats in the law ministry as well as the commerce ministry are trying to “usurp functions of the BCI” by bringing in foreign law firms through the back door.
Before we come to the events that led up to this letter by the BCI, let us have a look at the ongoing litigation before the Supreme Court. The apex court is currently hearing appeals that deal with the entry of foreign law firms in the country. Previously there have been two distinct judgements that were delivered by two separate high courts in the country that deal with this issue. One was the Bombay High Court judgement in the case of Lawyers’ Collective v. The Bar Council of India and the other was the Madras High Court judgement in the case of AK Balaji v. Union of India. While the Bombay HC held that RBI was not justified in granting permission to foreign law firms to open liaison offices in India under Section 29 of Foreign Exchange Regulation Act, the Madras HC went a little bit further. In it’s judgement Madras HC had observed-
“The Bombay High Court, therefore, rightly held that establishing liaison office in India by the foreign law firm and rendering liaisoning activities in all forms cannot be permitted since such activities are opposed to the provisions of the Advocates Act and the Bar Council of India Rules. We do not differ from the view taken by the Bombay High Court on this aspect.”
The court however went on to allow the entry of these firms on a fly in fly out basis. While observing that foreign law firms or foreign lawyers cannot practice the profession of law in India either on the litigation or non-litigation side, unless they fulfil the requirement of the Advocates Act, 1961 and the Bar Council of India Rules. Madras high court had said-
“However, there is no bar either in the Act or the Rules for the foreign law firms or foreign lawyers to visit India for a temporary period on a fly in and fly out basis, for the purpose of giving legal advise to their clients in India regarding foreign law or their own system of law and on diverse international legal issues.”
This letter written BCI Chairman Manan Kumar Mishra to the Prime Minister should not come as a surprise because BCI had earlier withdrawn it’s own draft Rules ahead of a meeting of all the stakeholders consisting of Ministry of Commerce, Society of Indian Law Firms (SILF), the Indian Corporate Counsel Association (ICCA), FICCI, Indian National Bar Association members and the Law Secretary Suresh Chandra in September this year.
Read the letter written to the Law Secretary by BCI withdrawing it's own draft Rules. No one from BCI was available for comment.
Read the letter here.
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