SC in Foreign Lawyers in India case: If a member is enrolled and he forms a firms with other enrolled members, then there is no objection

On Wednesday (31st January) the hearing in the foreign law firms case resumed before the Supreme Court bench of Justice Adarsh Kumar Goel and Justice UU Lalit. Nakul Dewan, appearing for petitioner Global Indian Lawyers, submitted, “We are challenging the 2009 Bombay High Court judgment in Lawyers Collective v. BCI, in so far as it forbade foreign law firms from establishing liaison offices in India unless enrolled under the Advocates Act of 1961”

Global Indian Lawyers is a registered society of lawyers qualified in India as well as outside India. They are only an association, not a law firm.

Nakul Dewan advanced the following arguments:

  • Their first submission was that the Act of 1961 does not apply to law firms, but only to individual lawyers.
  • Second, the Advocates’ Act does not restrict an Indian qualified lawyer from becoming dual qualified.
  • Third, the provision of reciprocity under sections 24 and 47 of the Advocates’ Act is based on citizenship alone.
  • Fourth, in context of sections 29, 30 and 33 of the Act of 1961, ‘to practice the profession of law’ is intended to mean only Indian law”.

What is the effect of multiple functions like market research, consultancy, management and other support services? Does this take one out of the scope of the Advocates Act,” asked the bench. Dewan said the query would be addressed over the course of the hearing.

The bench questioned him on the non-applicability of the Advocates’ Act to firms, stating, “If the Act imposes a bar on a single individual, the bar shall also extend to a group of individuals. The Act gives monopoly to an enrolled ‘advocate’. So where is the scope for any other person?”

Dewan referred to portions of the Bombay High Court judgment wherein it was observed that the RBI could not have validly granted permission to the foreign law firms under section 29 of the Foreign Exchange Regulation Act, 1973 to open liaison offices in India and that to engage in litigious as well as non-litigious matters in India enrolment under the Advocates Act is mandatory.

Dewan posed certain questions to the bench: “Does the law firm have to be enrolled? Now foreign law firms cannot set up offices in India because of the Bombay High Court judgment. Also, can a firm have Indian as well as non-Indian qualified lawyers?”

“If a member is enrolled and he forms a firms with other enrolled members, then there is no objection,” responded the bench.

Towards the end of the hearing the bench posed a question to CU Singh, appearing on behalf of BCI: “If we bar the foreign law firms and lawyers, would that not stop India from becoming the hub of activities? Even the Madras High Court has taken exception to the Bombay High Court judgment in respect of international commercial arbitration and advisory services on a fly-in and fly-out basis”.

The hearing shall continue on Thursday and is expected to be concluded then.