The resolution, a draft copy of which Legally India has seen, is understood to have been passed at at the BCI’s monthly committee meeting at around 9pm last night.

The softening of the BCI’s stance follows the Madras High Court’s judgment in February, which permitted foreign lawyers to enter India on a fly-in-fly-out basis and to work in arbitrations.

The draft resolution states:

The Bar Council of India has discussed the implications in the emergent meeting of the Council held on 31.03.2012 at its office in New Delhi and unanimously RESOLVED as follows: -

The Bar Council of India is a Statutory Body created under the Advocates Act, 1961 to regulate and maintain the high standard of the noble legal profession.

As back as in 1961, the Parliament felt that the maintenance of the freedom of lawyers is a must for a strong democracy, therefore the Advocates Act, 1961 was passed assigning important functions to these elected bodies called State Bar Councils and Bar Council of India. And in the recent past, the Courts have been facing strong opposition on several vital issues from the lawyers and under these backgrounds, the Courts are trying to curb the independence of legal profession by allowing the backdoor entry of foreign lawyers or under the veil of increasing foreign investment or otherwise.

The Council unanimously expresses its view that the Hon’ble Madras High Court’s judgment in the matter W.P. No. 5614 of 2010 (A. K.Balaji Vs. GOI, BCI and Ors) has pronounced on an area of public policy that was respectfully not within its domain, by allowing foreign lawyers to travel into India on temporary fly in fly out basis.

The power to safeguard the noble profession of law and prescribe the conditions, if any, subject to which foreign qualifications in law obtained by persons other than citizens of India shall be recognised for the purpose of admission as an advocate under the Act, resides with the Bar Council alone under section 47 of the Advocates Act.

The Bar Council of India, hence, resolves that in order to safeguard the independence of its decision-making powers vide supra, to allow the temporary fly in fly out of foreign advocates duly qualified and of good standing with the local Bar Council or equivalent authority of England and Singapore.

Emphasising the sole duty of the Bar Council of India to regulate foreign lawyers while in India, ergo, those foreign lawyers duly qualified and in India on a fly in basis, shall be prohibited from practising in every court or forum or dignified clerkship, except for practice of law before Indian courts at a level of District Court and Sessions Court, Magistrate Courts, Lok Adalat and Other Arbitral Tribunals.

The Bar Council of India will periodically examine the issue of admitting foreign lawyers to higher courts and clerkship practice biannually.

The India head of a UK-based magic circle firm commented, on condition of anonymity: “We of course welcome any moves by the Bar Council to liberalise the Indian legal profession, which will benefit all Indian advocates, the profession and everyone.”

“But the devil remains in the detail of this proposal,” he added. “Our [billing] rates would probably see significant downward pressure in the district or small claims courts, so our steering committee will have to take a call on whether we can open an office there now or in two years.”

BCI committee members were not available for comment at the time of going to press.

Last week the BCI won the long-running battle with the Human Resources Ministry over retaining the regulation of legal education.

More details and reactions on BCI’s resolution to follow shortly.

Breaking update 11:00, 1 April 2012, just in: A VERY HAPPY APRIL FOOLS’ DAY TO ALL!

Photo by Hugo photography