Report of the Indian Team
January 23, 2006
Table of contents
The UK-India Joint Economic and Trade Committee (JETCO) was set up in pursuance of the UK-India Joint Declaration made at London by the Prime Ministers of the United Kingdom and India on September 20, 2004. The Indian Committee has been constituted by the Ministry of Commerce and Industry, Government of India to provide recommendations on the possibility of opening of legal services in India and issues involved in that regard.
The first meeting of JETCO was held in New Delhi on January 13, 2005. The British and Indian delegations were led respectively by H.E Kamal Nath, Minister for Commerce and Industry and the Rt. Hon. Mrs. Patricia Hewitt MP, Secretary of State for Trade and Industry.
In the joint statement after their meeting, the Indian and British Ministers welcomed the establishment of JETCO, of which they were appointed the joint chairmen. They agreed that there was considerable potential to increase trade and investment between their two countries and that JETCO would play an important part in this process. To this end, they further agreed (inter alia) "to set up a mechanism to examine the requirements on non-practice legal advisory services for enhancing trade and investment. It would include industry representatives and would submit its suggestions to the Ministers within the next six months".
The British team represents only the legal profession in England and Wales and is not representative of the European Union of which it is a part.
In pursuance of this agreement, two teams of five lawyers each were established.
The British team consisted of :-
Sir Thomas Legg KCB QC (Clifford Chance)
Mr Ian Scott (Ashurst)
Mr. Martin Harman (Pinsent Masons)
Mr. Alex Pease (Allen & Overy)
Mr. Hugh McDermott (Law Society).
The Indian team consisted of :-
Mr. Rajiv Luthra (Luthra & Luthra Law Offices)
Mrs. Pallavi Shroff (Amarchand Mangaldas & Co.)
Mr. Amarjit Singh Chandiok (Chairman, Delhi High Court Bar Association)
Mr. M.L Bhakta (Kanga & Co, Mumbai)
Mr. Chandra Uday Singh (Mumbai)
Meetings and agreement on reports
The teams have held three meetings together: a preparatory meeting in New Delhi on 26-27 April 2005, followed by fuller meetings in London on 25-26 May 2005, and in New Delhi on 19-20 September 2005.
These meetings, and the background papers and briefings which were exchanged between the two teams and the process of consultations with some of the Bar Associations, caused us to run over the six months requested by the Ministers (which we regret), but they enabled a full examination of the issues. The teams agreed that they would render separate reports to the JETCO Ministers, although each team would give the other the opportunity to see and comment on its report before it was finalised.
Accordingly, the following is the Indian team's report to the JETCO Ministers.
II Overview of the Indian legal profession
The right of lawyers and law firms to practice law in India is governed by the Advocates Act, 1961("Act"), which is also the statute regulating the legal profession in India. A perusal of the provisions (Sections 29 and 30) of the Act make it amply clear that only Advocates i.e. the legal professionals recognised under the Act are entitled to practice the profession of law. The relevant sections have been discussed below for ease of reference:
Section 2(1) (a) - An Advocate is defined as - "An Advocate entered in any roll under the provisions of the Act."
Section 24 provides that only an Indian Citizen has the right to practice and be enrolled as an advocate in India. However, a national of any other country may be admitted as an advocate, if citizens of India are permitted to practice law in that other country.
Section 29-Advocates to be the only recognized class of persons entitled to practice law- Subject to the provisions of this Act and any rules made hereunder, there shall, as from the appointed day, be only one class of persons entitled to practice the profession of law, namely, advocates.
Section 30-Right of advocates to practice- Subject to the provisions of this Act every
Advocate whose name is entered in the state roll shall be entitled as of right to practice throughout the territories to which this Act extends, -
The issue whether the right "to practice the profession of law" would only mean the right to appear before courts and tribunals and authorities is presently sub judice before the Mumbai High Court in the matter of "Lawyers Collective vs. Chadbourne & Parke & others". Lawyers Collective filed a petition in Mumbai High Court against foreign law firms viz., Ashurst (UK), Chadbourne & Parke Associate (US) and White and Case (US). These foreign law firms had been granted permission by RBI under Section 29(1)(a) of the erstwhile Foreign Exchange Regulation Act, 1973 ("FERA") to establish liaison offices (as opposed to Section 30 of the FERA relating to grant of permission to practice any profession).