THE INDIAN LAW INSTITUTE
LL.M. (Two Year Course)
Wednesday Seminar X
(17.03.10)
(10.00am - 12.15 pm)
Lawyers Collective v. Bar Council of India & Others
Moderator : Farhat Jahan Rehmani
Presenter : Suparna Gaind
Discussants : Saurabh Singh and V. Elanchezhiyan
Rapporteur : Rahul Sharma
I. Facts
The genesis of the case can be traced back to when three foreign law firms, practicing in U.K/ U.S.A had applied to the Reserve Bank of India, seeking permission to open their liaison offices in India. In 1995, the RBI granted permission to open their respective liaison offices, with certain conditions. In the permission letter, it was specifically stated that the permission granted to the law firms is limited to the purpose of section 29 of the Foreign Exchange Regulation Act, 1973. Being aggrieved by the step taken by the RBI, a writ petition was filed in Bombay High Court by the petitioner. The main contention of the petitioner was that the foreign law firms could not be permitted to carry on practice either in litigious or non-litigious matters without being enrolled as advocates under the Advocates Act, 1961. However, the respondents argued that the Advocates Act, 1961 was applicable only to persons practicing in litigious matters and that the Act was enacted by Parliament in exercise of the powers conferred on it under entries 77 and 78 in list I of the Seventh Schedule of the Constitution, which refers to the organization of the Supreme Court and the high courts as well as the persons entitled to practice before these courts. Thus, the Act would apply only to persons practicing before the Supreme Court and the high courts and not to persons practicing in non-litigious matters.
II Judgment
After considering various judgments of the Supreme Court, the Bombay High Court refused to accept the contention that the Act was restrictive in nature. The court held that (i) Act applies not only to the persons practicing before the courts but also to persons who are practicing in non-litigious matters outside the courts and (ii) it applies to courts other than the high courts and the Supreme Court. Further, while observing the fundamental distinction between the professional activity and the activity of a commercial character, the court also held that the RBI was not justified in granting permission to the foreign law firms to open liaison offices in India under section 29 of the Foreign Exchange Regulation Act, 1973.
III Issues
1. Whether the Reserve Bank of India was justified in granting permission to the foreign law firms, under section 29 of Foreign Exchange Regulation Act, 1973 to open their respective liaison offices in India?
2. Whether the Advocates Act, 1961 intends to include both litigious and non-litigious practitioners?
3. Do you think that liberalising legal profession and permitting foreign law firms/ lawyers in India would enhance the quality of legal services, thereby facilitating the adoption of international best practices? If yes, should they be allowed to practice in India?
Suggested Readings
1. The Advocates Act, 1961.
2. Foreign Exchange Regulation Act, 1973.
3. Subodh Markandeya & Haroon S. Kably, The Foreign Exchange Regulation Act, 1973,
213-224 (1977).
4. S. K. Gupta & Ajaya Jain, Foreign Exchange: Law and Practice, 1.151-1.168 (1981).
5. O. N. Mohindroo v. Bar Council, AIR 1968 SC 888.
6. Ex. Capt. Harish Uppal v. Union of India, (2003) 2 SCC 45.
7. C. K. Sharma Baruah, “Entry of Foreign Legal Consultants and Foreign Law Firms into India”, 27 (1) Indian Bar Review (2000) 1.
