Delhi High Court Issues Notice On Plea Challenging BCI's Decision Permitting Entry Of Foreign Law Firms In India

The Delhi High Court on Friday issued notice on a plea challenging the notification issued by Bar Council of India (BCI) last year permitting entry of foreign law firms and lawyers in India.

A division bench of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora sought response of the BCI and the Union Government and listed the matter for hearing next in April.

The plea has been moved by various lawyers enrolled with the Bar Council of Delhi (BCD), Advocates Narendra Sharma, Arvind Kumar Bajpai, Siddharth Srivastav, Ekta Mehta, Arvind Kumar, Sanjeev Sareen, Harish Kumar Sharma and Deepak Sharma.

It challenges the notification issued by BCI on March 10 last year, submitting that it is ultra vires the provisions of the Advocates Act, 1961 and as amended from time to time.

Senior Advocate Rajesh Tikku appearing for the petitioners submitted that the impugned notification goes against the judgment of the Supreme Court in Bar Council of India v. A.K. Balaji & Ors (2015) wherein it was held that foreign law firms or foreign lawyers cannot practice in India, either in litigation or non-litigation side.

He submitted that the BCI does not have the power to allow entry of foreign lawyers who are not enrolled as an advocate under the Advocates Act. He added that the impugned notification is in the teeth of the statute.

“Even lawyers who are enrolled in India in different States, 30% are in the non litigation sector. We call it the creamy layer. They are into big collaborations, foreign venture and arbitration…You cannot create [a different class] by your own under the Rules. You amend the law but in the garb of Regulations, you cannot do this. In law, everything is laid down, how it is to be done,” Tikku said.

On the other hand, BCI's counsel, Advocate Preet Pal Singh, referred to the objective and rationale behind the impugned notification.

He submitted that the foreign lawyers are enrolled to practice in India for the limited purpose with limited rights and that their ethics will be completely governed and controlled by the BCI. “They will not be spot free completely,” Singh said.

The plea seeks to prohibit the BCI and Union Government from enforcing and implementing the notification as well as to allow any foreign law firms or lawyers to open office and practice in India, if any are registered.

It is the petitioners' case that the BCI has no authority under the Advocates Act to so permit foreign lawyers or law firms to enter India and to recognize them as advocates, within the meaning of Sections 29, 30 and 33 of the Act.

The plea avers that the foreign lawyers and law firms are not entitled to be enrolled as advocates under the Advocates Act, nor can their name be included on the roll of advocates prepared and maintained by State Bar Councils.

“The practice of law for a foreign lawyers or foreign law firms even in non-litigious matters is not permissible under the Act. It is submitted that permitting entry of foreign lawyers or foreign law firms to conduct non-litigious matters is totally illegal and contrary to the provisions of the Act as also the judgement of the Hon'ble Apex Court In A.K. Balaji (supra),” the plea adds.

Title: NARENDRA SHARMA AND ORS. v. BAR COUNCIL OF INDIA AND ORS