Foreign Law Firms entry: "How do you get over Supreme Court judgment in AK Balaji case," Delhi High Court asks BCI

The Delhi High Court on Friday issued notice to the Bar Council of India (BCI), the Union Ministry of Law and Justice and the Ministry of Home Affairs on a plea challenging the BCI's decision to allow entry of foreign law firms in India [Narendra Sharma and Ors v. Bar Council of India and Ors]. .A Division Bench of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora issued notice to the BCI and the Central government after hearing the petitioners and the bar body at length. "Issue notice. They (BCI) are permitted to file their counter affidavit in four weeks, rejoinder thereafter. Matter listed for further hearing on April 24," the order said.During the hearing, the Court also asked how the BCI could get over the 2018 apex court judgment in AK Balaji case which had held that the foreign law firms with foreign lawyers cannot set up offices in India"How do you get out of the judgement of the Supreme Court," the bench asked..Advocates Narendra Sharma, Arvind Kumar Bajpai, Siddharth Srivastav, Ekta Mehta, Arvind Kumar, Sanjeev Sareen, Harish Kumar Sharma and Deepak Sharma filed the plea challenging the notification issued by the BCI on March 10, 2023.As per their plea, the BCI notification allows foreign lawyers to be registered in India and practice law in non-litigious matters, but the BCI does not have the authority or power under the Advocates Act of 1961 to do so. “Consequently, the impugned Notification is ultra vires the provisions of the Advocates Act and against the supreme court judgement in Bar Council of India vs AK Balaji & Ors,” the plea said..The petitioners contended that the legal profession cannot "be taken over by foreign market forces to defeat the ends of justice nor justice dispensation system be subjugated to such forces”.It was argued that the BCI’s decision was also in violation of the ‘treaty of reciprocation’ as there is no reciprocity between India and other countries whose law firms will now be able to work in India and this will affect the young lawyers practicing in India,“Several Bar Associations, NGOs, associations of advocates, group of advocates and individual advocates are opposing opening of field to foreign law firms and foreign lawyers to get the registered under the Advocates Act, 1961 as an Advocate which makes them entitled to even appear in Courts, Arbitrators, Tribunals, quasi-judicial authorities, etc,” the plea said.Senior Advocate Rakesh Tiku appearing for the petitioners submitted that the BCI in the name of regulation of legal profession cannot go beyond what is permitted by the Advocates Act."Foreign firms have been allowed to open law offices. The Advocates Act does not permit it. You may amend the law, but in exercise in garb of regulation, you cannot do something that the Act does not permit," Tiku said.He said that there cannot be any distinction between litigation and non-litigation when it comes to law practice."Unless you are enrolled in State roll, you cannot practice. You may call it litigation or non-litigation," Tiku contended.It was further pointed out that only Indian citizens are allowed to enroll as lawyers in India."The Advocates Act says the person who has to be enrolled has to be a citizen. Question is can a person, who is not a citizen, by virtue of power under the Act to regulate, be allowed to practice," Tiku demanded.He also referred to the 2018 judgment of the Supreme Court in AK Balaji case in which the Supreme Court held that the foreign law firms with foreign lawyers cannot set up offices in India though foreign lawyers were permitted to ‘fly in fly out’ to advise on foreign law on a temporary casual basis..Advocate Preet Pal Singh who appeared for the BCI, said that the notification of BCI is clear on what is permitted.The Court, however, questioned Singh on how the BCI could get over the apex court judgment in AK Balaji case. "The practice can only be done by advocates enrolled but foreign law firms can have a limited role and they can come on fly-in and fly-out basis. They will be governed certain pre-requisite conditions," Singh replied.The Court then proceeded to order BCI to file its response and posted the case for further consideration on April 24.