Context: Recently, the Bar Council of India (BCI) has notified Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022, allowing foreign lawyers and law firms to practice in India.

• However, it did not allow them to appear before courts, tribunals or other statutory or regulatory authorities.

About the Bar Council of India (BCI)

• It is a statutory body established under the Advocates Act, 1961.

• It regulates legal practice and legal education in India.

• It performs certain representative functions by protecting the rights, privileges, and interests of advocates.

What is the Bar Council of India (BCI) decision?

• It allows foreign lawyers and law firms to register with BCI to practise in India if they are entitled to practise law in their home countries.

• However, they cannot practise Indian law.

• The foreign lawyers or foreign Law Firms shall not be permitted to appear before any courts, tribunals, or other statutory or regulatory authorities.

Who is permitted to practice law in India?

• As per the Advocates Act, advocates enrolled with the Bar Council alone are entitled to practise law in India.

• All others, such as a litigant, can appear only with the permission of the court, authority, or person before whom the proceedings are pending.

What kind of work foreign lawyers or foreign Law Firms will be allowed to do in India now?

• They shall be allowed to practise transactional work /corporate work such as joint ventures, mergers, and acquisitions, intellectual property matters, drafting of contracts, and other related matters on a reciprocal basis.

• They shall not be involved or permitted to do any work about the conveyancing of property, Title investigation, or other similar works.

• Indian lawyers working with foreign law firms will also be subject to the same restriction.

How have foreign law firms operated in India so far?

• Lawyers Collective v Union of India (2009): Only Indians holding Indian law degrees can practise law in India.

• It interpreted Section 29 of the Advocates Act, which states that only advocates enrolled with BCI can practise law.

• It also held that ‘practice’ would include both litigious and non-litigious practice, so foreign firms can neither advise their clients in India nor appear in court.

• AK Balaji v Union of India (2012): Foreign firms cannot practise either on the litigation or non-litigation side unless they meet the requirements and rules laid down by the Advocates Act and the BCI rules.

• However, it created an exception of no ban on temporary visits or advising clients on a “fly in and fly out” basis.

• The aim of International Commercial Arbitration introduced in the Arbitration and Conciliation Act, 1996, foreign lawyers cannot be debarred to come to India and conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration.

• By 2012, Business Process Outsourcing (BPOs) had arrived in India on a big scale and did backend work for US-based companies. In the legal profession, these firms, Legal Process Outsourcing (LPOs), carried support operations for lawyers. They operated in uncertain legal frameworks.

What was the Supreme Court’s decision?

• The Madras and Bombay High Court judgments were challenged in the Supreme Court by the BCI and Lawyer’s Collective.

• 2018: It upheld both the High Court judgments disallowing foreign law firms and lawyers, with some modifications such as holding the expression “fly in and fly out” to cover only “casual visit not amounting to practice.”

• This meant that the “fly in and fly out” route could not mean regular visits.

• On the issue of LPOs, the SC did not decide on their fate.