The Supreme Court has expressed its concern over unsatisfactory regulatory mechanism governing the advocates and observed in a case that there was an urgent need to review the provisions of the Advocates Act, 1961. The Law Commission of India, a body which looks into legal reforms, was asked to go into all relevant aspects relating to regulation of the legal profession and submit its report. The report submitted by the Law Commission, while advocating major changes to the legal profession, has drafted provisions relating to foreign lawyers.
Law Commission of India’s Report – The in the case of Mahipal Singh Rana v. State of UP, AIR 2016 SC 3302, directed the Law Commission of India (LCI) to revisit the provisions relating to regulation of disciplinary control over lawyers under the Advocates Act, 1961 (Act) and to recommend appropriate amendments so as to make the Act more comprehensive thereby facilitating Parliament to enact a law that would effectively empower the authorities for such effective regulation. The LCI thereafter invited all stakeholders including the Bar Council of India (BCI) to send suggestions/views on review of Act. After due deliberations the LCI recently released titled The Advocates Act, 1961 (Regulation of Legal Profession), to the Central Government for its consideration. The LCI has recommended a complete overhaul of the Act and to that effect has also prepared The Advocates (Amendment) Bill, 2017 which is placed at Annexure-III of the report.
What is noteworthy is that for the first time, concrete provisions to recognize and register foreign lawyers have been framed. Chapter 14 of the report titled ‘Prospects of Foreign Law Firms and Lawyers in India’ provides a very detailed analysis. Here are the key highlights:
‘In view of the developments that have taken place, if the foreign law firms are not allowed to take part in negotiations, settling up documents and arbitrations in India, it may have a counter-productive effect on the policy of the government to make India a hub of International Arbitration…..With this in view and judgement of the High Courts, the Law Commission considers it necessary to have enabling provisions in the Advocates Act which will enable the Bar Council of India to frame rules to recognise and register foreign law firms and lawyers in India, as and when a decision is taken in this regard, particularly in view of the reciprocity provisions.‘ [Para 14.9 (page 45)]
‘The globalization of the legal profession has brought forth the issues of the participation of foreign lawyers and foreign law firms in Indian legal system.‘ [Para 17.1 (page 52)]:
New provisions proposed to be added to the Act”
Functions of Bar Council of India (BCI)
‘(t) to register Indian and Foreign Law Firms and to regulate such Firms.’
(u) to regulate Foreign Lawyers registered and allowed to practice in India under the Rules prescribed by it.‘
– Power of BCI to make rules:
‘(ic) to register and regulate Foreign Law Firms as prescribed under this Act.‘
Amendment to the Act:
– Clause 2(1)(a) to be replaced with
‘ “advocate” means an advocate entered in any roll under the provisions of this Act and includes an advocate carrying on practice in law with a law firm, by whatever name called, and a foreign lawyer registered under any law in a country outside India and recognised by the Bar Council of India.‘
– Addition of sub-section 6(ii)(ddd) under functions of state bar councils – ‘to provide for the recognition, registration and regulation of Bar Associations (except the Supreme Court Bar Association, Association of law firms, foreign lawyers) including election of its office bearers from amongst the list of regular practitioners of such Bar Association situated within its territorial limits and to make rules, schemes with concurrence of the Bar Council of India to secure their orderly growth;‘
– Addition of sub-section 7(p) under functions of the BCI – ‘to provide for recognition and registration of law firms and conditions subject to which they may practice law, and other legal services based Bar Associations or law firms and foreign lawyers, if any‘
The above provisions have given a thrust to the Government’s initiatives of making suitable changes to the legal profession to equip it with the challenges of globalization and bringing it at par with international norms.
However the report has earned the wrath of BCI since other recommendations of the LCI appear to curtail its current powers and jurisdiction. The BCI has been on the offensive since then with stinging comments and much mud-slinging in the media. To vent its ire, it had called for . The face-off continued till the Government was approached last week. The Union Law Minister, Ravi Shankar Prasad, has without a meaningful dialogue, deliberation and opinion of the BCI, all state bar councils and bar associations. This has prompted the BCI to call off the protests for now.