In the opinion of the Bar Council of India (hereinafter called the BCI), the
legal profession should delve into more complex dimensions of the legal arena to
meet the global standards in the field.
Initially, if we look back to the timeline, BCI in fact opposed the entry of
foreign lawyers or foreign firms into the legal practice in India. However, the
legal fraternity of India made efforts by holding a joint consultative
conference of BCI and the Chairman, Vice-Chairmen and Chairmen of Executive
Committees of all the State Bar Councils of India to hold dialogs and interact
with the Government of India, the Ministry of Law, and the Law Societies of
Foreign Countries to explore the viability of opening the route for the practice
of foreign law and various international legal issues predominantly in
In the series of various judgments the BCI wide this notification has provided
enough reasoning to understand the opinion of the various courts regarding the
matter. We can now look at the stand of the courts with respect to the foreign
lawyers or foreign law firms practicing foreign law in India.
In the case of Lawyers Collective v. Bar Council of India, the Bombay High Court
criticized the decision of the RBI allowing foreign law firms to open liaison
offices in India, and the court interpreted that "to practice the profession of
law" in section 29 of the Advocates Act, 1961 (herein referred to as the "Act")
has a wider meaning that includes litigious and non-litigious matters.
In the case of A.K. Balaji v. the Madras High Court
, it was held that
foreign lawyers and firms cannot practice in India unless they fulfill the
requirements of the Act and the rules of BCI, It was however held that the "fly
in and fly out" basis for the motive of providing legal advice can be practiced
by them. The court, however, was of the view that the foreign lawyers could not
be barred from coming to India and conducting arbitration proceedings.
Both of the above judgments were challenged in the Hon'ble Supreme Court, and
the court held that:
Where an advocate has the right to practice, the same comes with the right to
practice as well; this view was taken in Pravin Shah v. K.A. Mohd.
The court was of the view that law includes not only appearances in courts but
also giving of opinions, drafting of instruments, and participation in
conferences involving legal discussions, therefore, law practice includes not
only litigation matters but non-litigious ones as well. Dismissing the
contention, the Act does not deal with companies or firms; the prohibition
applies to groups of individuals or juridical persons in the same manner as it
applies to an individual.
Therefore, the court upheld the decisions of Madras HC and Bombay HC but added
that fly in and fly out basis only covers a casual visit, which would not amount
to practicing law. They further added that the foreign lawyers or law firms can
only conduct arbitration proceedings in cases where the proceedings arise out of
international commercial arbitration in view of sections 32 and 33 of the Act
and they will be governed by the code of conduct applicable to the legal
profession in India.
Finally, they have determined that B.P.O. companies that provide services such
as word processing, secretarial support, transcription services, proofreading
services, and so on do not fall under the purview of the Act; however, if the
services amount to the practice of law, the provisions of the Act will apply and
they will be prohibited from doing so.
BCI's VIEWS ON THE MATTER
BCI with these draft rules, has expressed its interest in the matter, mentioned
some discussions and deliberations with the Law Society of England with the
Indian Government regarding the reciprocation of the practice of law with
respect to Indian law, advice of English law and international law by Indian
lawyers/law-firms and law firms, and specified six reserved activities that may
not be allowed to be practiced.
As mentioned in these rules, as per the delegates of the UK, the Indian lawyers
only need to register as Registered Foreign Lawyers (RFL) in cases where they
are in partnership with the Solicitors of England and Wales, and they already
have the Solicitor Qualification Examination (SQE), which is a process to
requalification exams that Indian lawyers may give in order to practice there,
and the BCI proposes that the same shall be verified by the Government of India
via the Ministry of Law.
With time changing, BCI has realized the need for opening up law practice in
India to foreign lawyers in the field of practice of foreign law and it would
not be in any way harmful to the Indian lawyers, who are not likely to suffer
any disadvantage by opening up the field to the foreign lawyers in a restricted
and well regulated manner and following the principle of reciprocity as it would
be mutually beneficial for the lawyers in India. As per BCI, an Indian lawyer's
proficiency in law is already comparable to international standards, and there's
no reason for BCI to hesitate now.
Based on the aforementioned reasons, the BCI now framed the Bar Council of India
Rules for the registration and regulation of foreign lawyers or foreign law
firms in India on the principle of reciprocity in a well defined, regulated, and
controlled manner under its rule making powers as per the Act.
Bar Council of India Rules for registration and regulation of foreign lawyers
or foreign law firms
The Bar Council of India Rules for Registration and Regulation of Foreign
Lawyers or Foreign Law Firms (herein referred to as "Rules") has provided all
the relevant definitions under Rule 2 in its Chapter I.
Chapter II provides for criteria for registration under rule 3 of these rules,
i.e., registration of such foreign lawyer or firm under these rules, provided if
such lawyer is practicing for the purpose of giving legal advice on a fly in and
fly out basis, then registration under these rules is not required, provided
further that in such cases such lawyer or law firm does not maintain any office
in India for such practice and such practice of giving advice does not exceed 60
days in any period of 12 months.
Under Chapter III of these rules, application to registration and renewal of
registration is prescribed, under which rule 4 provides the requirements for an
application for registration in "FORM A" under these rules along with the
registration fee prescribed under the Schedules of these rules, i.e., $25,000
USD for registration of a foreign lawyer along with a one-time guarantee amount
of $15,000 USD and $50,000 USD for registration of a foreign law firm along with
a one-time guarantee amount of $40,000 USD, the applicant may submit the
application along with the registration fee and guarantee amount through
registered post or in-person or they may submit the same on-line, also the
applicant has to comply with the required documents, which are prescribed.
The registration under these rules shall be valid for a period of five years
only, and thereafter the registration will expire, for renewal of the
registration, the foreign lawyer or law firm shall apply to the Secretary Bar
Council of India for the renewal of registration as per "FORM B" appended to
these rules within six months before the expiry of such registration. The
renewal application shall be accompanied by all the required documents as
prescribed under rule 5 sub-clause (3) of these rules, along with the renewal
fee, i.e., $10,000 USD for foreign lawyers and $20,000 USD for foreign law
firms, as per schedules under these rules.
The BCI has the power to refuse such registration if it is of the opinion that
the number of foreign lawyers or foreign law firms of any particular foreign
country is likely to become disproportionate with the number of Indian lawyers/
or law firms registered or allowed to practice in that country. BCI has provided
the power to limit registration in order to maintain balance, ensure complete
reciprocity, or secure the interest of Indian lawyers.
BCI after examining the application, checking the reciprocity rules with the
concerned foreign country, and holding an inquiry relating to the genuineness of
the application and all the attached documents as prescribed, shall grant a
certificate of registration with a unique registration number.
The Indian Government shall be kept in the loop, and the council shall send a
copy of such registration certificate granted. These rules have also provided
preferences as well as rights and privileges to the Designated Advocates i.e.
any superior class of Advocates that any Senior Designated Advocate in India
enjoys under section 23 of the Act.
Where the registration of a foreign lawyer or law firm has expired and has not
been renewed or cancelled permanently, or in case of voluntary termination, the
security deposited by such lawyer or law firm shall be returned without any
Rule 7 of these rules provides for the disposal of applications pertaining to
registration and renewal.
The BCI grants the registration once the applicant satisfies the council of
- If the applicant has any criminal charges or disciplinary actions that
would make him unfit to practice law in India,
- The application is supported by all the relevant documents that are
- Lastly, the country of such a foreign lawyer or law firm allows the
Indian Advocates enrolled under the Act to practice law there in the same
comparable manner as these rules permit such a foreign lawyer to practice in
However, BCI shall provide a reasonable reason to reject any application and
an opportunity of being heard to the applicant, and if with the reasonable
reason BCI still doesn't permit such registration or renewal, the registration
fee, renewal fee, or guarantee fee shall be returned to the applicant, after
adjusting any recoverable amount by the BCI, if any.
It has also been provided that the Government of India (GOI) may be consulted in
order to ensure that the applicant fulfills the requirements in any particular
case; however, the GOI may recommend the cancellation of any registration or
renewal on the ground of national security or if it is hampering the national
interest in any way. BCI may also seek the opinion of the Hon'ble Chief Justice
of India or any sitting judge of the Supreme Court or Union Minister of Law &
Justice or the Union Minister of Foreign Affairs, or any other Senior Advocate
or Jurist or the matter may be put before the Advisory Board of BCI if it is
necessary. But the last decision shall be vested with BCI in all these matters.
These rules also clarify that the registration of such foreign lawyers or law
firms, in any way, does not permit their free and unregulated entry and stay in
India; for the same, they shall be regulated by Indian law only.
It is also provided that the registration/renewal may be cancelled in the event
that Indian lawyers, in a foreign country where such lawyer or law firm is
entitled to practice law, are subjected to unfair discrimination or if there is
no effective legal system in that country.
What practice of law is permitted?
Chapter IV of these rules describes the nature and extent of the practice of law
by foreign lawyers, under which they have provided certain arenas under which
such lawyers shall be allowed to practice in India.
Following is the nature of registration under these rules:
BCI has laid down some areas of practice for the reference:
- A foreign lawyer or law firm shall only be allowed to practice in
- When any foreign lawyer or law firm is registered under these rules,
he/it shall be deemed to be an advocate within the meaning of sections 29,
30, and 33 of the Act.
- In case of any substantive misconduct, such a foreign lawyer or law firm
shall not be subjected to the provisions under Chapter V of the Act;
instead, the BCI may cancel the registration of such a foreign lawyer or law
- Foreign lawyers or law firms shall not be allowed to appear before any
court, tribunal, or other statutory or regulatory authority.
- They are not allowed to do any work related to the conveyancing of
property, title investigation, or any other similar work.
- Such a foreign lawyer or law firm shall be allowed to practice any
transactional or corporate work on a reciprocal basis, of course.
- Doing work, transacting business, and giving advice and opinion
concerning the laws of such foreign lawyer's or law firm's country.
- Providing legal expertise or advice to any person, firm, company,
corporation, trust, etc. whose head office is in a foreign country in
matters of international arbitration, which is conducted in India.
- Providing legal expertise or advice to any person, firm, company,
corporation, trust, etc. whose head office is in a foreign country in the
proceedings before bodies other than courts, tribunals, etc. who are not
legally entitled to take oaths in matters where application and knowledge of
the foreign law of the particular foreign country is required.
- Providing legal expertise or advice concerning the laws of the foreign
country of such foreign lawyer or law firm and in any matter related to an
international legal issue.
It also provides that any advocate who is enrolled under any State Bar Council
shall and having partnership or association with any foreign law firm registered
under these rules can only take up non-litigious matters.
Such advocate shall have no right to or advantage from being an advocate
enrolled in India.
The registered foreign lawyers or law firms are entitled to open law offices in
India, and BCI shall be informed of all the particulars of such offices, to
enter into partnership with one or more foreign lawyers or law firms registered
under these rules, and to engage or procure any advice from any Indian Advocate
registered under these rules.
Under Chapter V of these rules, the BCI has the authority to initiate any
disciplinary action against such foreign lawyer/law firm if they fail to comply
with the Act's and rules' ethical and practice standards.
Where BCI has reason to believe that foreign lawyer or law firm has committed
any misconduct in connection with the practice of law in India, or has breached
or violated any terms and conditions of these rules in any manner, it may refer
the case to the concerned country of the foreign lawyer or law firm; if,
however, the misconduct is grave and prima-facie apparent to the face of the
record, BCI may cancel/suspend the registration of such foreign lawyer or law
In cases where the registration has been obtained by means of misrepresentation
or fraud, the Council may provide a reasonable opportunity of being heard to
such foreign lawyer or law firm and, after canceling or suspending the
registration or renewal of the registration of such foreign lawyer or law firm,
along with the penalty of an amount if it deems fit.
However, the Council may also dismiss the complaint if there's no substance to
it or reprimand the foreign lawyer or law firm or suspend the registration or
impose a penalty of an amount if it deems fit, or impose costs.
The ultimate regulatory authority is BCI under these rules, as it has the power
to issue directions and regulations from time to time, as it may feel necessary
to, from time to time. In case of any dispute or doubt regarding the
interpretation, meaning, and execution of these rules, the BCI shall be the
final authority to resolve and settle all such disputes, and its decision shall
be the final one.
The BCI has finally made these rules and regulations about foreign lawyers and
law firms being able to practice law in India, this action was long awaited.
This step is the foundational step for the legal fraternity in India to grow
towards the goal of becoming a hub for international commercial arbitration.
This will generate new jobs for Indian lawyers as well, as the firms will not be
able to function without the proper interference of Indian lawyers.
Written By: Jatin Soni,
B.COM LLB (H.), final year student, Amity Law
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