Permitting Audience For Foreign Lawyers, In Domestic Courts” & “Hague Rules, And Indian legal Scenario - In Child Custody Matters [CJI Khehar Speech]

INAUGURAL ADDRESSBYHON'BLE SHRI JAGDISH SINGH KHEHARCHIEF JUSTICE OF INDIA ATALL INDIA SEMINAROF THE INTERNATIONAL LAW ASSOCIATION ONJULY 8, 2017AT India Habitat Centre, Lodhi Road, New DelhiIt is a pleasure for me, to address this esteemed gathering, for brain storming, on two key issues of international law ---- “Permitting audience for foreign lawyers, in Domestic Courts” and the “Hague rules, and Indian legal scenario - in Child Custody Matters”, at this All India Seminar. In this ever shrinking world of unimagined science and technology, human beings have been compelled to realise, that they share a common future, depending on how they resolve their current problems. International law - given the different histories and cultures of nations, can be a uniting or a dividing force. It is in this context that the two topics selected by the International Law Association, can be discussed.The first issue:The Indian legal profession has grown over a short period of less than 70 years… to possibly become the world’s largest, and most influential, in the matter of governance. India has close to 1.2 million lawyers, whose professional conduct is regulated by the Bar Council of India and the State Bar Councils. With the advent of globalization, the legal profession in India, has undergone a major shift during the preceding two decades. Economic liberalization, has given an opportunity of constant interaction with foreign law firms, and an international clientele. As a result, there has been a transfer of knowledge, systems and practices to Indian law firms, such that, they are able to undertake a much larger role in cross-border transactions. Many countries such as USA, Japan, Australia, even some EU States, have been approaching the Government of India, to seek liberalization of India’s legal services sector. These representations desire market access commitments, under the framework of the General Agreement on Trade in Services (GATS). Till now India, which is a member of the World Trade Organization (WTO) has not given any such commitment. However, foreign governments through representative bodies continue to lobby for opening Indian legal services to foreign competition. Equally stiff, has been the opposition by the Bar Council of India. The Advocates Act, 1961, which governs the legal profession in India, does not permit foreign lawyers to practise law in India. It, however, acknowledges that if some country permits Indian lawyers to practise in its jurisdiction, then lawyers from that country can be granted reciprocal privileges in India.The issue pointedly cropped up in 1995 when the Lawyers’ Collective, a legal rights group, moved the Bombay High Court, challenging the right of foreign law firms to practise in India… three foreign firms had received permission from the Reserve Bank of India, to set up a liaison office, for activities in India. The High Court, in Lawyers Collective v. Bar Council of India, disallowed the initiative. The same issue came up before the Madras High Court, in the A.K. Balaji vs Government of India in 2012, but the Madras High Court felt, that there was no bar to prevent foreigners access, either under the Advocates Act, 1961, or the Bar Council of India Rules. The High Court was of the view, that foreign lawyers or law firms could visit India for temporary periods, on a “fly in and fly out” basis, to advise their clients on foreign law. The High Court concluded, that foreign lawyers would not be permitted to practise Indian law, either in relation to litigation or advisory matters, unless they were qualified and were enrolled as advocates in India. The Bar Council of India, assailed this order before the Supreme Court. The Supreme Court directed the Reserve Bank of India not to permit law firms from abroad, to open liaison offices in the country. The bench ordered: "It is clarified that Reserve Bank of India shall not grant any permission to foreign law firms to open liaison offices in India under Section 29 of the Foreign Exchange Regulation Act, 1973. It is also clarified that the expression 'to practice the profession of law' under Section 29 of the Advocates Act, 1961 covers the persons practising litigious matters as well as non-litigious matters other than contemplated in para 63 (ii) of the impugned order and, therefore, to practice in non-litigious matters in India, the foreign law firms, by whatever name called or described, shall be bound to follow the provisions contained in the Advocates Act, 1961."However, the Supreme Court in 2015 decided to grant leave in two appeals against the Madras High Court judgment, and on the same issue arising out of a judgment of the Bombay High Court. In these matters, the Bar Council of India has raised the following contentions:"In the absence of any rule of reciprocity or the unwillingness of foreign lawyers to enroll themselves under the Advocates Act, it is not only violation of the Act but also their...

Permitting Audience For Foreign Lawyers, In Domestic Courts” & “Hague Rules, And Indian legal Scenario - In Child Custody Matters [CJI Khehar Speech]

Chief Justice JS Khehar

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