Legal experts divided over SC ruling on foreign law firms

Larger questions of policy need to be answered, says former Law Minister Ashwani Kumar

Opinion among legal experts is divided over the Supreme Court’s Tuesday order ruling that foreign law firms cannot set up offices or practice in India but can “fly in and fly out lawyers to offer legal advice.”

Former Law Minister Ashwani Kumar, who has dealt with the subject as a minister, said the Supreme Court order has interpreted the law as it exists today but larger questions of policy need to be answered.

“The judgement of the Supreme Court reflects the spirit of the Advocate’s Act as currently in place and the rules of the profession as defined by the Bar Council of India. However, there is a question that pertains to liberalisation of the legal sector in accordance with WTO initiated global trade negotiations,”said Mr Kumar.

No intent to practice

Senior lawyer Abhishek Manu Singhvi, who had successfully argued on behalf of foreign law firms in the Madras High Court in 2012, said foreign law firms never attempted to practice in India on Indian law.

“Their entire object is to handhold foreign clients or Indian clients from abroad coming into India or foreign and Indian clients doing legal work abroad. In all cases involving appearances in Indian courts or all cases of opinions on Indian law, such law firms always do and must engage Indian lawyers,”said Mr Singhvi.

He said deliberately a “provocative ambience of jingoism” is created that often clouds the issue. “Till such time as the legislature steps in with a comprehensive law, we need to follow the above principle,”he said.

The Bar Council of India (BCI) had strongly opposed to the idea of foreign law firms operating in India and wanted regulations even for lawyers who “fly in and fly out” for legal advice.

Under BCI

“They should follow the Advocate ACT 1961 and the rules laid down by BCI. If any foreign lawyer commits a professional misconduct, then under BCI rules, we can hold them accountable and initiate disciplinary action,”said S Prabhakaran, co-chairman of the Bar Council.

“We welcome the judgement since it allows foreign lawyers with international expertiseto come and offer their advice. When we argue our cases, we often cite or refer to international law. So, international exposure helps but at the same time, the judgement protects our Indian law firms and lawyers,” said Sanjay Chaddha, senior partner in BSK Legal, a Delhi-based law firm.