•  •  Dark Mode

Your Interests & Preferences

I am a...

law firm lawyer
in-house company lawyer
litigation lawyer
law student
aspiring student

Website Look & Feel

 •  •  Dark Mode
Blog Layout

Save preferences

SCOI Report: Uncertainty ahead for foreign lawyers case in SC: Lawyers Collective make appearance with Datar, BCI

The courts are now unlikely to cleave the Gordian foreign law   firm knot...
The courts are now unlikely to cleave the Gordian foreign law firm knot...

The Indian judiciary has been grappling with the question of whether to permit foreign lawyers to practice in India for more than two decades. After yesterday’s hearing in the Supreme Court, it doesn’t look like any end is in sight at least without parliamentary intervention.

As widely expected, it now appears that it will continue to take more time to reach finality as the Supreme Court yesterday (14 September), decided to grant leave in two appeals against the Madras high court judgment and the Bombay high court judgment against foreign law firms.

The Bar Council of India (BCI) is the appellant in the first case, and a respondent in the second. In the first case, the appeal is against the Madras high court’s judgment, delivered on 21 February 2012.

In this case, the petitioner, AK Balaji had sought a direction to the Union of India, the RBI, the BCI and the Bar Council of Tamil Nadu to take action against 32 foreign law firms, allegedly practicing illegally in India.

The Advocates Act provides that a foreigner may be admitted as an advocate in India, if Indian nationals are permitted to practice law in his/her country, thus satisfying the principle of reciprocity.

The Madras high court had agreed that foreign legal experts needed to visit India, to offer advice to their clients on their laws, and there is no specific provision in the Advocates Act to prohibit a foreign lawyer from visiting India for a temporary period to advice his or her clients on foreign law. The concept of flying in and flying out (FIFO) which gained currency after the High Court’s verdict was a result of this understanding.

The Bombay high court’s verdict predates the Madras high court’s verdict, having been delivered on December 16, 2009. In this case, the RBI had allowed 12 to 14 foreign law firms to open their liaison offices in India.

The Bombay high court had held that such permission could not have been granted as it was contrary to the Advocates Act and the BCI Rules, as first reported by Legally India.

Both the Madras high court and the Supreme Court’s interim order endorse this view, as reported at the time.

But in the second appeal before the Supreme Court, the Global Indian Lawyers (GIL) group of intervenors that surprisingly appeared in April, has challenged this view.

What was argued in court yesterday?

On September 14, the petitioner before the Bombay high court, the NGO Lawyers Collective, argued before the Supreme Court that Global Indian Lawyers (GIL) should not be allowed to challenge the Bombay high court verdict after a gap of six years.

The Lawyers Collective’s senior counsel, CU Singh, pointed out that GIL was not a party before the Bombay high court, and therefore, the bench should decide the maintainability of its appeal, at the threshold stage.

When the BCI, through its senior counsel, MN Krishnamani sought six weeks time to file a comprehensive reply, GIL’s senior counsel, Arvind P Datar expressed his apprehension that the case might be going into cold storage once again. The bench, however, accepted Krishna Mani’s suggestion that the BCI may be at liberty to mention if there is any settlement between the BCI and other parties in the meantime.

The Union of India’s stand on the issue continued to be uncertain with its counsel seeking more time to submit a response.

The UOI had held the view before the Bombay high court that those practising in non-litigious matters – foreign lawyers claim they are practising non-litigious law- are not governed by the Advocates Act.

Yet, the UOI supported the BCI’s stand before the Madras high court that if foreign law firms were permitted to open their offices in India, Indian lawyers would suffer discrimination.

Reports suggest that the GOI and the BCI may revise their stand on the issue; therefore, the status of the appeals in the Supreme Court will continue to be uncertain till they make their stand clear to the court.

Click to show 2 comments
at your own risk
By reading the comments you agree that they are the (often anonymous) personal views and opinions of readers, which may be biased and unreliable, and for which Legally India therefore has no liability. If you believe a comment is inappropriate, please click 'Report to LI' below the comment and we will review it as soon as practicable.