Foreign law firms cannot set up their offices in India, the Supreme Court ruled on March 13. However, they were permitted to fly in lawyers on a temporary basis to advise clients, the court said, adding a stipulation that such visits must not amount to advocacy under the Act.
The apex court also allowed foreign lawyers to conduct international arbitrations in India while asking the government and the Bar Council of India (BCI) to frame rules for foreign lawyers’ entry into India. Foreign firms did not have an absolute right to participate in arbitration involving foreign laws, it said, adding that they can do so only under permitted rules.
Only advocates enrolled with BCI are entitled to practice law in India, the Supreme Court said. The others lawyers would have to take the permission of court, authority or person before whom proceedings are pending in order to undertake legal practice. Practice of law includes litigation as well as non-litigation activities, it said, noting that, “practicing of law includes not only appearance in courts but also giving of opinion, drafting of instruments, participation in conferences involving legal discussion. These are parts of non-litigation practice which is part of practice of law.”
The court also allowed BPOs and LPOs to operate in India if their activities did not amount to “practice of law” and said that “this is a matter which may have to be dealt with on case to case basis having regard to a fact situation.”
The bench of justices Adarsh Kumar Goel and UU Lalit upheld Madras High Court judgment dated Feb. 21, 2012, in AK Balaji v Bar Council of India (BCI) & Ors.
The court said that foreign lawyers may visit India for a temporary period on a fly in and fly out basis, for the purpose of giving legal advice to their clients in India regarding foreign law, and that foreign lawyers cannot be debarred to come to India and conduct international commercial arbitration proceedings.
“The rules are needed. We want foreign lawyers to come so as to not deny the Indian advocates of the same privilege in other countries. If the BCI does not frame the rules, the Central government would take it upon itself to stipulate the rules,” the Centre, represented by Additional Solicitor General (ASG) Maninder Singh, had said while calling upon the BCI to exercise its power under section 49(1)(e) of the Act of 1961 and frame the rules governing the practice of law in India by foreign lawyers and law firms, failing which the Central government would undertake to lay down the same under section 49A of the Act.
The Advocates Act applied to individuals, groups of individuals, companies or firms, the ruling specified.