Opinion

Why it's a good idea for foreign law firms to be barred from practice in India

The entry of foreign law firms will hurt the average Indian’s ability to find adequate legal representation.

During a recent visit to India, Shailesh Vara, the United Kingdom’s minister for the Courts and Legal Aid, expressed optimism about the government opening up the legal services sector to law firms and lawyers from abroad. With the present government’s enthusiasm for foreign investment, he said, India should not miss out on the opportunity the draw the best international legal talent to its shores.

Yet the path to convert this into reality is tough and twisted, and for sound reason. Since 2009, the courts and Bar Council of India have opposed the liberalisation of the Indian bar not out of fear of competition – as many claim – but on principle.

Liaison offices

The dispute has its genesis in 2009, when Lawyers’ Collective, a not-for-profit litigation and legal advocacy organisation, moved the Bombay High Court against three foreign law firms for operating “liaison offices” in India. Lawyers’ Collective contended that these makeshift offices, which were not registered in India, and mostly operated out of the suites of five star hotels, were illegal because they violated the conditions for permission granted by the Reserve Bank of India under the Foreign Exchange Regulation Act. The RBI’s conditions mandated that these firms should not undertake any activity of a commercial or industrial nature, besides liaison work. In reality, these three firms were not only networking with Indian corporations, lawyers and law firms, but were also providing legal advice.

That second contention of the petitioner referred to The Advocates Act, 1961, which governs lawyers and the legal profession in India. Section 29 lays down that only those registered as advocates are entitled to practise law in India. Section 33 prohibits anyone not registered as an advocate from taking up litigation at any level.

The foreign firms argued that “practicing law”, under Section 29, referred only to litigation, and therefore they were free to provide legal advisory services – what is known as transactional lawyering. Yet in December 2009 the court held that the “practice of law” includes both litigation and non-litigious matters. It would thus take an amendment of the Advocates Act for foreign law firms to offer their full bouquet of services in India.

For and against

There is no dearth of voices in support of opening up India’s legal sector to overseas firms. For one, it would increase the availability of lucrative employment opportunities for Indian professionals and graduates.

What is lost amidst this clamour is that legal service is not a commodity. Access should not be contingent upon one’s ability to pay. Arguments regarding “opening up the market” with regard to sectors like say, manufacturing, or even insurance, are not of relevance to the legal sector where the yardstick is fundamentally different – access to justice.

Already, it is quite clear that financial capacity determines the quality of legal representation an individual receives, and consequently, in most cases, the quality of justice obtained. Yet this does not permit opening the floodgates to the power and logic of the market.

Access to justice

The entry of foreign law firms will hurt the average Indian’s ability to find adequate legal representation. First, top overseas firms will enter the market, signing up the best legal talent. Then middle-rung entities will come in, who will absorb those of mediocre calibre and acumen. The recruitment data from India’s law schools shows that, given a chance, every third law graduate would choose to work in a law firm. Small, independent lawyers are a vital component of India’s legal community, making sure people of most income groups have access to representation. The entry of corporate firms will lead to a sharp fall in independent practitioners.

It is likely, also, that foreign firms will refrain from practicing criminal law, since the structure of criminal litigation in India is very different from that abroad.

Data from the United States, which is at the forefront of commercialised and corporatised legal service, is disquieting. A 2011 study by the World Justice Project shows that an alarming number of Americans simply forego their right to representation in civil litigation matters because they cannot afford to pay.

A robust, institutionalised legal aid system would still mitigate this effect.  The right to free legal aid is now a fundamental right, but access to legal services in all types of case is no less fundamental to the process of delivering justice. Enthusiasm for the market should not be allowed to diminish its importance.

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“My body instantly craves chai and samosa”

German expats talk about adapting to India, and the surprising similarities between the two cultures.

The cultural similarities between Germany and India are well known, especially with regards to the language. Linguists believe that Sanskrit and German share the same Indo-Germanic heritage of languages. A quick comparison indeed holds up theory - ratha in Sanskrit (chariot) is rad in German, aksha (axle) in Sanskrit is achse in German and so on. Germans have long held a fascination for Indology and Sanskrit. While Max Müller is still admired for his translation of ancient Indian scriptures, other German intellectuals such as Goethe, Herder and Schlegel were deeply influenced by Kalidasa. His poetry is said to have informed Goethe’s plays, and inspired Schlegel to eventually introduce formal Indology in Germany. Beyond the arts and academia, Indian influences even found their way into German fast food! Indians would recognise the famous German curry powder as a modification of the Indian masala mix. It’s most popular application is the currywurst - fried sausage covered in curried ketchup.

It is no wonder then that German travellers in India find a quite a lot in common between the two cultures, even today. Some, especially those who’ve settled here, even confess to Indian culture growing on them with time. Isabelle, like most travellers, first came to India to explore the country’s rich heritage. She returned the following year as an exchange student, and a couple of years later found herself working for an Indian consultancy firm. When asked what prompted her to stay on, Isabelle said, “I love the market dynamics here, working here is so much fun. Anywhere else would seem boring compared to India.” Having cofounded a company, she eventually realised her entrepreneurial dream here and now resides in Goa with her husband.

Isabelle says there are several aspects of life in India that remind her of home. “How we interact with our everyday life is similar in both Germany and India. Separate house slippers to wear at home, the celebration of food and festivals, the importance of friendship…” She feels Germany and India share the same spirit especially in terms of festivities. “We love food and we love celebrating food. There is an entire countdown to Christmas. Every day there is some dinner or get-together,” much like how Indians excitedly countdown to Navratri or Diwali. Franziska, who was born in India to German parents, adds that both the countries exhibit the same kind of passion for their favourite sport. “In India, they support cricket like anything while in Germany it would be football.”

Having lived in India for almost a decade, Isabelle has also noticed some broad similarities in the way children are brought up in the two countries. “We have a saying in South Germany ‘Schaffe Schaffe Hausle baue’ that loosely translates to ‘work, work, work and build a house’. I found that parents here have a similar outlook…to teach their children to work hard. They feel that they’ve fulfilled their duty only once the children have moved out or gotten married. Also, my mother never let me leave the house without a big breakfast. It’s the same here.” The importance given to the care of the family is one similarity that came up again and again in conversations with all German expats.

While most people wouldn’t draw parallels between German and Indian discipline (or lack thereof), Germans married to Indians have found a way to bridge the gap. Take for example, Ilka, who thinks that the famed differences of discipline between the two cultures actually works to her marital advantage. She sees the difference as Germans being highly planning-oriented; while Indians are more flexible in their approach. Ilka and her husband balance each other out in several ways. She says, like most Germans, she too tends to get stressed when her plans don’t work out, but her husband calms her down.

Consequently, Ilka feels India is “so full of life. The social life here is more happening; people smile at you, bond over food and are much more relaxed.” Isabelle, too, can attest to Indians’ friendliness. When asked about an Indian characteristic that makes her feel most at home, she quickly answers “humour.” “Whether it’s a taxi driver or someone I’m meeting professionally, I’ve learnt that it’s easy to lighten the mood here by just cracking a few jokes. Indians love to laugh,” she adds.

Indeed, these Germans-who-never-left as just diehard Indophiles are more Indian than you’d guess at first, having even developed some classic Indian skills with time. Ilka assures us that her husband can’t bargain as well as she does, and that she can even drape a saree on her own.

Isabelle, meanwhile, feels some amount of Indianness has seeped into her because “whenever its raining, my body instantly craves chai and samosa”.

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This article was produced by the Scroll marketing team on behalf of Lufthansa as part of their More Indian Than You Think initiative and not by the Scroll editorial team.