In Coversation With Dr. Lalit Bhasin On New BCI Rules Allowing Foreign Firms In India (Part- 1)

You have completed more than six decades in this profession. How has the legal profession changed in the last few decades? And what has not changed about the legal profession in six decades? 

What has not changed is that in India we still consider this as a profession. What has changed outside India is that it has become a business.So that is the role of the profession as I see it and that has remained unchanged but the system of administration of justice has definitely taken a beating  in the sense that people in India are not getting Justice from the courts of law. One can't blame the courts of law but it is the type of system that we have. We are very by nature very litigious people and at the moment you have nearly five crore cases, which is the official figure and this figure must be mounting.

In our constitution, we have a preamble that we secure justice for our citizens. Justice is the first word followed by the words social, economic and political. But, Are we getting it? No, we are not getting it. From justice emphasis has shifted to law. Law means regulations and rules. There is no self-regulation. That emphasis is from justice to law with more and more laws and regulations coming in. It leads to more and more disputes. People were thinking of Alternate dispute resolution in the form of arbitration. Now people are looking for an alternative to arbitration. It has become very delayed because it is generally conducted by the retired judges of the Supreme Court or High Courts and they are flooded with arbitration matters and the dates they give is after five and six months and they're very expensive. Therefore, instead of strengthening our litigation structure and court system we have, we are now trying to promote arbitration but that has failed to take off for the very simple reason that we do not have good arbitration institutes in this country which would  inspire confidence in the parties like in Singapore. 

If you are to sum up in bullet points the three things that are for a kind of intervention immediately what would it be?

There are three things. Government is the largest litigant. If there is a change in the mindset of people and the government officials that we have to resolve disputes and not keep an ego by going in appeals revisions. Therefore if the government takes an effective step then litigation can be reduced. Second is, we have too many laws. We have overlapping laws, we have outdated laws.There should be more reliance on self-regulation and faith in the people and in our systems. And not have more laws coming in because that means regulations and disputes and all that. 

How did the idea of the Society Of Indian Law Firms come about? 

Well, the idea came in the mid 90s when liberalization of the economy was taking place. So, It was that time when in addition to the earlier traditional law firms you see a whiff of fresh talent and young people, young lawyers with good resources, with good knowledge, with good competence, and with some knowledge about technology started setting up their startups. It all started with the law firms at that point of time. And by the year 1999 we had a galaxy of good emerging law firms. At that point of time a threat came which was there from 1994 when I was the general secretary of the bar association of India and Fali Sam Nariman was the president when for the first time the government brought in the move to bring in foreign lawyers. This was opposed by the bar association because we knew that the Indian legal profession is not yet ready to face that challenge, to face that competition, to face the huge resources of these foreign lawyers.Therefore in 1999. Some of the managing partners of the law firms and I had a meeting and the idea of setting up such a society was mooted for no  individual members, only law firms to safeguard the interest of the law firms. Now, that was a unique move. Because in the world, there is no organization which has only law firms as members

What can be better in terms of implementation? How do you make sure that it benefits the Indian jurisprudence system? 

It's a very strange development because last month the Commerce secretary had again convened a meeting where I was invited as the president of SILF and the bar council of India was also invited to find out that we don't oppose the entry of foreign lawyers and how it is that we can upgrade and facilitate indian legal profession and law firms to compete favorably with them. Now that was the last thing and we said that you have full support and they said we'll have more meetings and all that it is. Either that or the left hand doesn't know what the right hand is doing. If there are two ministries involved. Or it has been a move possibly due to some pressures from the highest authorities.Because this obviously was done by Bar Council which reports to the ministry of law and justice. They don't report to the commerce ministry. 

So, even Mr. Lakshmi kumaran has been officially engaged with the ministry of commerce as an advisor On these FTA and taxation issues. So he was like a bridge between the commerce ministry and ourselves. So when the midnight regulations came, he was also shocked. He told that the ministry of commerce doesn’t know about it. 

If you see the rules carefully, one part is the regulations and the other part is like a preamble to the regulations trying to justify why these regulations are being brought in. And that is where the cat is out of the bag. They specifically mentioned the United Kingdom, the delegations coming from their president of the law society of England and Wales whom I had also met and I said that we are fully supportive but let them come out with regulations and let them consult us. We gave our draft To the Bar Council way back in 2016 as to what should be the terms and conditions on which you should allow. If they just followed it, there would have been no problem. 

We said that the regulation will come after consultation with us and there is no problem and it may take six months to one year but the entry of foreign lawyers will be allowed and we are fully supportive of that. But this is what happened. Now, the regulations have come suddenly. How have they come? What pressure has been at work? 

Read ahead in part 2.