BCI’s decision to allow foreign lawyers to practise in India: Contents, discontents and comparison

Changing its long-held stance, the BCI has permitted foreign lawyers and law firms to practise law in India, without allowing them to appear in courts

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ON March 10, the Bar Council of India (BCI) issued the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022 that permit foreign lawyers to practise law in non-litigious matters in the areas of foreign law, international law and international arbitration matters in India.

In their Objects and Reasons, the Rules emphasise that the growth in the international legal work sphere and globalisation of legal practice necessitates the growth of the legal profession and practices in India. The Rules allow foreign lawyers and law firms to practise law in India under certain conditions and restrictions. They provide for registration, renewal, cancellation of registration and disciplinary action for misconduct. They also provide a list of the areas of law in which foreign lawyers and law firms are allowed to practise and prohibited.

According to the Advocates Act, 1961, advocates enrolled with the BCI alone are permitted to practise law in India. Prior to the Rules, the BCI had opposed foreign lawyers and law firms to practise in India in any capacity, whether litigious or non-litigious. With the Rules, foreign lawyers and law firms are permitted registration under the Advocates Act, 1961, which was previously restricted to Indian citizens.

What is the nature of legal practice to be allowed to foreign lawyers?

The Rules define a 'foreign lawyer' as a person, including a law firm, company or corporation, that is entitled to practise law in a foreign country. They clarify an 'Indian lawyer' to mean an advocate enrolled on the roll of any state bar council of India in accordance with the provisions of the Advocate Act.

Through the Rules, the BCI permits foreign lawyers and foreign law firms to practise in areas such as foreign law, international law and international arbitration matters in India. They would be allowed to advise about the law of the country of their primary qualification. Such permission is intended to take place in a well-regulated and controlled manner, and on the principle of reciprocity, that is, the Indian advocates will be allowed to practise in the jurisdiction of the foreign lawyer.

According to the Rules, a registered foreign lawyer can practise law in India solely in non-litigious matters, and thereby, are not permitted to appear before any courts, tribunals or other statutory or regulatory authorities.

While foreign lawyers and law firms are engaged in transactional work/corporate work such as joint ventures, mergers and acquisitions, intellectual property matters, drafting of contracts, and other related matters on reciprocal basis, they are not permitted to undertake conveyancing of property, title investigation or other similar work.

What is the registration process for foreign lawyers?

On the eligibility of foreign lawyers and foreign law firms to register in order to practise law in India, the Rules mandate registration with the BCI by sending the application, appended to the Rules, along with a registration fee (provided in the Schedule of the Rules) and certain required documents.

However, such a mandate is not applicable to practice, which is, firstly, done on a 'fly in and fly out basis' for giving legal advice to the client in India. Secondly, the advice needs to be procured by the client in a foreign country, and the foreign lawyer or foreign law firm should not maintain an office in India for the purpose of such practice. Thirdly, such practice in India should not, in aggregate, exceed 60 days in a period of 12 months.

The BCI may hold consultations with the Union government through the Union Ministers of Law and Justice or of Foreign Affairs on the registration and renewal of such applications. It may also seek the opinion of the Chief Justice of India, any sitting Judge of the Supreme Court, or a senior advocate or jurist, or it may place the matter before its Advisory Board for the Development of Legal Education and Legal Profession. The Rules, however, clarify that the BCI will be the final authority in registration, cancellation of registration, and its renewal.

How have courts interpreted foreign lawyers' eligibility to practise in India over the years?

The Rules explain the history of judicial interpretation of the issue through court challenges. The foremost challenge was by non-government organisation Lawyers Collective, in the case of Lawyers Collective versus BCI & Ors. (2009) at the Bombay High Court. Here, it was held that the expression "to practise the profession of law" in Section 29 of the Advocates Act  is wide enough to cover persons practising in litigious matters as well as non-litigious matters, implying that foreign lawyers or law firms could neither advise their clients nor appear in courts in India. It observed that to practise in non-litigious matters in India, provisions contained under the Advocates Act need to be followed.

Whereas, the Madras High Court, in A.K. Balaji verus The Government of India (2012), held that foreign lawyers cannot practise law in India either on the litigation or non-litigation side, unless they fulfil the requirement of the Advocates Act and the BCI Rules. The court, however, clarified that the Act or the Rules allow foreign lawyers or law firms to visit India for a temporary period on a 'fly in and fly out' basis, to give legal advice to their clients in India regarding foreign law or their own system of law and on diverse international legal issues.

With both judgments challenged at the Supreme Court, a division bench comprising Justices Adarsh Kumar Goel and Uday Umesh Lalit provided its analysis on the issue in Bar Council of India versus A.K. Balaji & Ors. (2018). In its judgment, the bench held that practising law includes not only appearance in courts but also giving of opinion, drafting of instruments, and participation in conferences involving legal discussion, which are aspects of non-litigation practice and part of the practice of law.

It further held that the visit of any foreign lawyer on a 'fly in and fly out' basis may amount to the practice of law if it is on a regular basis, not covering a casual visit for giving advice under the expression 'practice'. It indicated that the BCI or the Union government is at liberty to make appropriate Rules to determine whether a visit is casual or frequent.

Why are the Rules being criticised?

According to a statement by the All India Lawyers' Association for Justice (AILAJ), a pan-India organisation of lawyers and law students, by suddenly changing its stance of opposing the entry of foreign lawyers and law firms, the BCI has sacrificed the interests of the Indian legal fraternity for the sake of the Free Trade Agreement between India and the United Kingdom that, among other things, addresses trade in 'services', including the Indian legal service sector. It states that the Rules were framed without any consultation with the larger body of advocates across the country.

Also read: India-UK FTA talks: Case for liberalisation of Indian legal sector

AILAJ alleges that in view of the discrimination against and worsening situation of junior advocates, first-generation advocates, women advocates, and advocates from socially disadvantaged sections, and the BCI not responding to the issues that affect the majority of lawyers, it has misplaced its priorities by allowing the entry of foreign lawyers and law firms.

The statement highlights that the Rules go beyond and against the decision of the Supreme Court in its 2018 judgment that observed that foreign law firms or foreign lawyers cannot practise the profession of law in India, either on the litigation or on the non-litigation side.

It emphasises that although the Rules restrict foreign advocates and firms from appearing before judicial fora, they permit a large range of other practices such as opening up law offices, engaging and procuring legal expertise of Indian advocates registered as foreign lawyers, and entering into partnerships with foreign lawyers and law firms registered under these Rules.

Finally, AILAJ's statement questions whether the majority of Indian lawyers, who are already at a disadvantage due to structural social and economic realities, and small and medium law firms, would be able to compete with larger firms working with foreign lawyers and firms. It also questions whether foreign lawyers will be allowed to practise without a qualifying test like the All India Bar Examination.

Also read: Supreme Court upholds validity of All India Bar Examination

What are the rules in other countries about allowing foreign lawyers to practise in their respective jurisdictions?

In the United States (US), foreign lawyers are eligible to practise law according to each of its constituent state's regulations to admit attorneys within their jurisdiction. The applicants are required to submit all documents and fees in a timely manner and complete any US law courses required by that state's Board of Legal Examiners. Each state has the final authority to determine whether an applicant meets the requirements to sit its Bar examination. Certain states have also adopted the Uniform Bar Exam (UBE), which allows the transfer of licenses between UBE states. However, certain states require attending an accredited law school in the US to be able to take the Bar exam.

A qualified, practising lawyer in their home jurisdiction abroad, who wants to work and qualify in England and Wales needs to take the Solicitor's Qualifying Examination (SQE), which replaced the Qualifying Lawyers Transfer Scheme in September 2021. SQE, run by Solicitor's Regulatory Authority, is a two-part examination that consists of two exams in a multiple-choice question format and a practical assessment of skills. The SQE allows foreign lawyers to qualify as a solicitor by sitting for the same examination as domestic candidates.

In Canada, 'foreign-trained lawyers' can qualify to practise law in any Canadian province. However, the rules and regulations on the practice of foreign lawyers differ from province to province. For instance in Ontario, foreign lawyers need to apply to the law society for a foreign legal consultant permit to give legal advice on the law of a foreign jurisdiction. For licensing to practise law, the foreign lawyer must be registered in the law society's licensing process of the province where they intend to practise law.

The National Committee on Accreditation evaluates the legal training and professional experience of persons with foreign or non-common law legal credentials, and who seek admission to a Bar in Canada. An applicant may be asked to complete exams and/or complete specific law school courses within a prescribed time frame. Once a 'foreign-trained lawyer' has obtained a certificate of qualification, the requirements for becoming licensed to practise are similar to a Canadian-trained lawyer.