A Delhi-based lawyer has filed an objection to the recently notified Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022 with the Bar Council of India (BCI) and the Union Ministry of Law and Justice.
Advocate Pawan Prakash Pathak has argued that the power to recognize foreign degree qualifications is not limited to the BCI and that the legislature has the authority to enact legislation on the subject in consultation with the lawyers’ body.
Contending that the Rule is arbitrary and creates a class within a class of advocates thereby violating Article 14 of the Constitution of India, the representation reads:
“Whereas the Power to make Rules by BCI under Chapter II is limited to the disciplinary committee and allied powers but the qualification for enrolment of foreign advocates/ law firm, even the BCI vs AK Balaji judgement of the Hon’ble Supreme Court does not consent the same.”
According to Advocate Pathak, the BCI has not provided any ratio to clarify how many registrations of foreign lawyers will outnumber Indian lawyers in non-litigation practice.
“Also, in reference to the mode of registration of application under section 4(ix) of the rules (foreign law firm/ advocate registration) the BCI is not competent to confer upon itself the power to investigate the affidavit sworn in a foreign land and followed by investigating power to verify the veracity and hence this clause is also arbitrary,” the representation stated.
It adds, “Whereas Section 9( iii) allows indirect entry into litigious matters through the appointment of the Indian Advocates and hence this will entail the foreign law firms expanding there trade and practise in India vide Indian lawyers and therefore this will also be a threat to Indian Sovereignty because then there control will increase due to indirect channel entry in litigation.”
Advocate Pathak has requested that BCI consider his representation and respond within 15 days, failing which he will take a “alternative course of action” in accordance with the law.
“…there is a fundamental flaw with this policy and raises the question which may be considered by this representation and then decision may be taken following due procedure as to amend the policy or scrap it or re-draft the policy with due representations & consultation from our fraternity,” it further stated.
The questions raised in the representation are whether BCI maintains any roll of advocates who are directly registered with it and not the State Bar Councils and if the power to enrol foreign advocate and law firms is outside the purview of powers and functions of BCI.
