Don't need CJI or Centre approval for rules allowing entry of foreign law firms: BCI to Delhi High Court

The Bar Council of India (BCI) told the Delhi High Court on Tuesday that its Rules allowing the entry of foreign law firms and lawyers into India do not require the approval of the Chief Justice of India (CJI) or the Central government.

Counsel appearing for the BCI made the statement before a Division Bench of Chief Justice Devendra Kumar Upadhyaya and Justice Tushar Rao Gedela in the pleas filed by Dentons Link Legal and CMS IndusLaw challenging the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022.

Senior Advocate Arvind Nigam, appearing for one of the petitioners, stated that the BCI had yet to prove that it had obtained the CJI's or the Central government's approval for these rules.

"We don't need the approval... Allow me to file a counter and I will justify," the BCI counsel responded.

Meanwhile, the Court today reiterated its criticisms of the BCI Rules, especially the provisions allowing drastic penalties against law firms based solely on a preliminary inquiry. The Court remarked that the Rules are a "mess".

Addressing the BCI lawyer, the Court said that the Bar body may consider carrying out an amendment.

"It’s a mess. Why don’t you [BCI] carry out an amendment? These rules are applicable all across the country," the Court remarked.

The BCI said that a consultation process is going on and that suggestions are being considered.

"Please frame the rules properly, instead of explaining all this. You are Bar Council after all," the Bench responded.

Ultimately, the Court granted the BCI two weeks to file its affidavit in the case. The case was adjourned to January. The Court's earlier order restraining the BCI from taking any final decisions in its proceedings against the law firms will continue.

"Don’t take the final decision," the Court said.  

IndusLaw and Dentons Link Legal have challenged the BCI Rules and the show cause notices issued to them in August in relation to the alleged unauthorised collaborations or combinations between Indian and foreign law firms in violation of the BCI Rules. 

The law firms have argued that the BCI has no power under the Advocates Act to frame rules governing the entry of foreign law firms and lawyers in India. They claim that the Rules promulgated are ultra vires the provisions of the Advocates Act, 1961 and violative of Articles 14, 19(1)(g) and 21 of the Constitution of India.

Section 49 of the Advocates Act does not empower BCI to frame rules to regulate the entry of foreign law firms and foreign lawyers to engage in the practice of law in India, the plea by IndusLaw states. 

Meanwhile, Dentons Link Legal referred to Section 49(1)(c) and (e) of the Advocates Act, which require the prior approval of the Chief Justice of India or the Central government before the Council can frame rules of this nature. In the absence of such approval, the regulations are ultra vires the parent statute, it argued.

Further, it contended that the regulations deal exclusively with foreign lawyers and foreign law firms, but make no attempt to define what constitutes an “Indian law firm.” 

While hearing the matters earlier, the High Court had questioned the BCI rules, especially its provisions allowing drastic actions against law firms based solely on a preliminary inquiry.