By Mukesh Butani & Tarun Jain

A debate is ongoing against the backdrop of the talks between India and the UK on a comprehensive free trade agreement (FTA), breaking the inertia on long-due reforms in the legal services space. The UK’s legal fraternity, particularly institutional law firms, is pushing for India to open up the sector by removing restrictions on foreign lawyers practising here. Representatives of the Law Society of England and Wales and the UK government’s department of international trade were in Delhi last month to discuss with representatives of Indian law firms, against the backdrop of the governments’ ambition of announcing the FTA by Diwali 2022.

The Indian legal sector is governed by the Advocates Act of 1961, which permits only a lawyer licensed in India by a State Bar Council to practise law. Given the frequency of nation’s legislative agenda, amending it ordinarily would have involved just another legislative exercise of Parliament, but it is easier said than done. This is on account of two broad objections put forth by India’s legal fraternity. First, the principle of reciprocity given the two-way nature of an FTA—permitting Indian lawyers to practice in the UK and vice versa—will likely not survive. The second is rather challenging and rests upon a phobia that legal reforms threaten cannibalisation of opportunities available to Indian lawyers by paving the way for more institutional, economically sounder, and deep-rooted foreign law firms. Put conversely, the core issue is whether India can shed its protectionist mindset qua its lawyers 75 years after Independence, and expose them to global competition, or not.

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The traditional argument is that a significant cross-section of Indian lawyers, particularly those practising in non-metro subordinate courts, operate under abysmal working conditions with little or no economic opportunities. It is argued that exposing them to foreign competition is suicidal. On the other hand, for lawyers operating under the institutional style of law firms, the contention is that the talented ones would get poached by foreign law firms that offer better work and financial opportunities. In short, the canvass is replete with paranoias citing inequities, inequalities, and insensitivity to the cause of the Indian fraternity. The fact is that many millennials are choosing law as a career. It is time to reflect on the changed economic realities, a case in point being the recent decision of the Delhi High Court in Pankaj Kumar, ruing over the unfortunate financial stress for younger lawyers and imploring senior (lawyers) in the profession “to be more mindful of the financial background of their juniors and employ a more empathetic approach” in paying stipends.

The FTA negotiations are not a cause for concern and, instead, are a moment of reflection. An obstinate objection against revisiting the state of affairs would be turning a blind eye to glaring realities. Here are some realities of the past decade: Law graduates who choose to get enrolled with the Bar Council form a minuscule proportion of the new graduates. Open borders permit migration for global opportunities. Even better, foreign firms visit India to recruit graduates from Indian universities. Even amongst those lawyers who pursue domestic careers, cross-border experience, ability to apply hard-learned skills, etc, compel the brightest minds to take up positions in marquee law firms, in-house counsels, etc. By default, therefore, at the entry-level itself, it is the quality of the bar that takes a beating. It implies that meritocracy (coupled with inadequate lateral entry opportunities) becomes a casualty in terms of the availability of judicial talent from the bar. Naturally, the consistent exhortation of senior judges at law school convocations, imploring graduates to join the bar, has met limited effect.

Free-market economics and the benefits of competition do not exclude the legal profession. There is no reason to deny the mobility of talent and wider opportunities, otherwise available to a limited few, to address the widespread economic inequality among legal professionals. The most common question before the legal profession is the extent of reforms in the wake of the 1991 agenda and the 1995 WTO-driven reforms, etc. The objections fail to give due weight to the ingenuity and the skills of Indian legal professionals, notwithstanding Indian lawyers’ success across the globe, as academicians or as professionals. Why deny opportunities for talented, entrepreneurial lawyers to prove themselves under the foreign law-firm umbrella? In fact, owing to the artificial limitations on the work and collaboration fronts, the benefits from cross-mobility (between foreign-owned and Indian-owned firms) are stalled.

The initial steps can be taken with caution. Instead of indiscriminate opening of the legal-services border, a foreign law graduate may be permitted to practise in India upon success in the Indian Bar exam and meeting other attended conditions. Similarly, qua law firms with foreign ownership, a de minimis intake of Indian lawyers can be mandated, thereby opening avenues for their qualitative proficiency through collaboration. Other conditions can be etched into the FTA to ensure a legal sanction. In conclusion, revisiting the resistance to opening up the legal profession in India can’t be over-emphasised. An outright rejection of the changed paradigm does no justice to young lawyers here.

The authors are advocates

Views are personal