LIBERALISATION OF LEGAL SERVICES IN INDIA

H&S Report on Draft BCI Rules 2016

BCI Rules for Foreign Lawyers to address Ease of Doing Business

A Report on the Draft Bar Council of India (BCI) Rules for Registration & Regulation of Foreign Lawyers in India, 2016 jointly prepared by Hammurabi & Solomon, Indian National Bar Association (INBA) and Medhaadvisors has been submitted to Shri. Suresh Chandra, Law Secretary, Government of India on 30th August 2016 and to Shri. Sudhanshu Pandey, Joint Secretary, Ministry of Commerce & Industry on 31st August 2016.

With an eye on ‘ease to do business’, BCI had come out with Draft Rules for Registration & Regulation of Foreign Lawyers in India under the provisions of the Advocates Act, 1961. At a meeting held on 5th July 2016, the Union Law Ministry had sought inputs from stake-holders on the said draft Rules.

‘Ease of Doing Business’ by entrepreneurs and Investors in India should be at the centre-stage of reforms in the legal services sector in India. With India targeting a $5 trillion GDP in the next 5-7 years, the reforms in legal services sector has to keep pace with the requirements of stakeholders in the development and growth of India.

The report emphasised that the reforms envisaged in the said Draft Rules, impact a multitude of stakeholders including Indian and foreign companies, large law firms, emerging law firms, boutique law firms, small law firms, Law Schools, Interns & Students , ADR & mediation Professionals and General Counsels as well as emerging class of Indian entrepreneurs under numerous initiatives of the government requiring high quality and competitive priced , domestic & foreign legal advise. Each and most of these stakeholders are impacted differently by the said reforms. Therefore, the said reforms would need to drive the growth of all the above stakeholders.

The report focusses on India emerging as the “Legal Services Capital” to the world in the Asian and African region. The reforms should therefore enable the availability of best quality of legal support at the very doorstep of entrepreneurs and professionals doing business in India and in the region.

The report examines the global best practices followed in other jurisdictions including United States of America, UK, Singapore, Brazil, South Africa, South Korea, Japan, Russia, China, Malaysia and Indonesia.

The report recommends the entry of foreign lawyers/law firms in a phased manner with indicative timelines as follows:
1. The first phase would be to allow foreign lawyers to practice in the areas covered in the Draft BCI Rules within this year.

2. The second phase would be bringing about internal reforms in various applicable laws such as the Advocates Act,1961 and Limited Liability Partnership Act, 2008 which would in turn allow more partners to be part of the firm, removing restrictions on advertising and initiating reforms in the education sector is necessary to ensure availability of a good talent pool in legal profession.

3. Last Phase can be policy changes as necessary for expansion of the practice of foreign firms by allowing foreign lawyers to practice law in India including by forming Joint Ventures (JVs) and in Collaboration with Indian Lawyers. To come up with rules and policies to regulate the foreign lawyers and keep a check on their activity and to set up a disciplinary body to keep a tab on foreign lawyers as well.

4. Reciprocity and Level playing Field to Indian Lawyers/Law Firm.

A copy of the report can be accessed at http://www.hammurabisolomon.in/BCI rules report 2016/.

CBI NEEDS A STATUTORY LEGAL CHARACTER

Need for a New Legal Framework, Accountability, Oversight and Autonomy to CBI ?

Manoj Kumar

While the Apex Court put it in the recent Coal block allocation case, Independence of CBI functioning is paramount and cannot mean that CBI moves with crutches of the Executive/GOI, one wonders why then has CBI been put under superintendence of the GOI under the DSPE Act (refer below).

The CBI, in its website (http://cbi.nic.in/aboutus/aboutus.php) clearly declares that:

“…….the Superintendence of Delhi Special Police Establishment vests with the Central Government save investigations of offences under the Prevention of Corruption Act, 1988, in which, the superintendence vests with the Central Vigilance Commission…..”

No wonder that the Apex Court’s observations that CBI being a premier investigating agency must be credible and impartial, comes as a surprise to many – who wonder what can the CBI do under the prevailing legal framework.

Why is the CBI being expected to conduct itself above board while discharging its functions if the very legal constitution of CBI is flawed by GOI control on the one hand and lack of accountability and oversight on CBI on the other hand.

While CBI is expected to investigate cases of immense national importance and high fiscal scales requiring it to be completely above board, its legal character has made it vulnerable to interference by the government raising doubts about its objectivity.

CBI’s present legal status has evolved as follows:

1941 Executive Order :

The Special Police Establishment (SPE) was set up by the Government of India (GOI) in 1941 under a executive order to investigate cases of bribery and corruption in transactions concerning the War and Supply Department of the GOI. In 1942, the scope of the SPE was expanded to include cases of corruption on Railways.

1943 & 1946 ordinances :

In 1943 (and again in 1946), GOI issued an ordinance an setting up a Special Police Force mandated to investigate cases of bribery in departments of the Central Government.

1946 Delhi Special Police Act :

In 1946, the Delhi Special Police Establishment Act, 1946 was passed giving DSPE the jurisdiction to investigate offences in the Union Territories only and empowering the Central Government to extend its jurisdictions to other areas.  The Central Government is also empowered to notify cases for investigation by the DSPE.

1963 Resolution :

Vide a resolution dated 1^st April 1963 the GOI set up the CBI under the 1946 DSPE Act with various divisions which have been expanded numerous times.

It is pertinent to note that as of now, the CBI does not have any structured legal constitution, accountability or oversight on its functioning.

This has led to allegations of very compromising and subjective conduct by CBI repeatedly as a result of being directly under the control and dependence of the GOI.

In this light, the Apex Court has observed that the first thing to be done is to liberate the CBI from any extraneous considerations and interference of GOI – for which there is a dire need to make CBI autonomous, accountable and have a broad based oversight over its functioning.

A few leaves on the best suited accountability & oversight structure on CBI can be taken from The Intelligence Services (Powers and Regulation) Bill, 2011 (http://164.100.24.219/BillsTexts/LSBillTexts/asintroduced/7185LS.pdf) [supported by an initiation of the Observer Research Foundation with active involvement of the writer.] as follows:

–  GOI should make a legislative and regulatory framework for the CBI;

–  CBI should be made accountable to a National Oversight Committee headed by a former Chief Justice of India, leaders of both houses of parliament and opposition leaders in both houses of parliament to ensure  an effective oversight mechanism of CBI.

The credibility of CBI had never been so low. GOI needs to put its act together to make CBI independent and autonomous and free CBI from its clutches.

In fact the CBI chief’s affidavit before the Apex Court confirming the worst fears of the Apex Court about the sighting of the status report by law ministry only shows what effect strict accountability and oversight can have on the functioning of the Central Bureau of Investigation (CBI).

(The author is a corporate law expert and managing partner of Hammurabi & Solomon. He can be reached at manoj.kumar@hammurabisolomon.com)

 

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