The Supreme Court of India is currently hearing arguments in a long-drawn legal battle regarding the opening up of the country’s legal market to foreign lawyers.
The Bar Council of India (BCI) has appealed a 2012 decision wherein the Supreme Court upheld a lower court decision allowing foreign lawyers to visit India on a “fly-in, fly-out” basis for advising on non-Indian law matters.
Foreign Firms To Present Arguments
The BCI has presented its view before the Supreme Court and next week foreign firms such as Ashurst, Clifford Chance, Bird & Bird, Eversheds Sutherland and Clyde & Co among others, are expected to present theirs.
The case Bar Council of India v. AK Balaji & Ors has delayed the liberalization of India’s restrictive legal market rules, with the BCI insisting that discussion regarding foreign law firms’ entry must be conducted only after the case is decided.
The Modi government is reportedly keen to allow foreign firms to set up operations within the country’s Special Economic Zones, and offer non-Indian law advice.
According to the BCI, the court ruling in the Balaji case allows foreign lawyers to take up international commercial arbitration work, and also to advise on issues in which Indian lawyers may lack expertise.
It has argued that as both fall under the “practice of the profession of law,” they must be regulated under its rules and the country’s Advocates Act 1961.
Legal Battle Dates Back To Two Decades
The case has its origin from the time a few foreign firms like Ashurst and White & Case were licensed to set up offices in India.
A Mumbai-based professional organization Lawyers Collective challenged the foreign firms’ Indian offices in 1995 in the Bombay High Court. The court cited the 1961 law prohibiting non-Indian citizens from being admitted to practice and ruled against foreign firms.
The foreign firms appealed the decision to the Supreme Court, which sent the matter back to the Bombay High Court.
In 2009, the Bombay High Court upheld that foreign law firm offices were unlawful. This decision however failed to address the issue of foreign lawyers practicing foreign law in India without a physical office.
A lawyer named A.K. Balaji filed a suit with the Madras High Court in 2010, challenging around 30 foreign firms on the legality of them practicing any law in India. The court ruled in favour of the “fly-in, fly-out,” arrangement for foreign lawyers to visit clients in India in 2010, which was later upheld by the top court
Petition Challenging 2009 Ruling Pending
An organization Global Indian Lawyers Association has also filed a petition challenging the 2009 decision by the Bombay High Court and has called for liberalizing the country’s legal market. The case is currently pending before the Supreme Court.
