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Liberalization in Indian Legal Profession

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Since economic liberalization, Indian economy has grown stupendously, however both liberalization and growth elude the legal sector till date.

In 1991, economic reforms of liberalization and globalisation were implemented in India. These very reforms are credited for the stupendous economic growth we witnessed in the recent years. However, liberalization in legal sector is still awaited and there is little being done about it. This paper argues why liberalization of legal sector is a requisite and how it could be implemented. Bar Council of India must use its powers under Section 49 (1) (ag) of the Advocates Act, 1961 to change the rules to bring liberalization in the legal profession in India and let foreign firms and lawyers practice in India. 

PRESENT SITUATION

India along with China is seen as one of the most desired destinations for law firms to operate in the coming years. In pursuance of this, the UK government and other leading countries have tried to convince the Government of India to liberalize the legal sector. However, they could not change the stiff stance of Bar Council of India which is unequivocally opposed to the idea, without providing any rationale for the same. China on the other hand, has been seeing progress on this front. International firms have expanded their presence in China in both a competitive and collaborative way enabling local firms to expand overseas and create leading global law firms. In the A.K. Balaji case, even the Supreme Court missed the opportunity by not ordering Bar Council of India to bring in the amendments in the Advocates Act, 1961 that would open the legal profession to foreigners. The court in this case read Section 29, which says only ‘advocates’ can practice in India, combined with Section 24, which mentioned criteria to be adjudged as an ‘advocate’, and held that foreign firms cannot practice in India and are allowed only on a ‘fly in and fly out’ basis which permits ‘casual visits’ by foreign firms to advise clients on foreign laws. The ‘fly in and fly out’ basis as permitted by Supreme Court will not bring the benefits, whether in the legal or economic sphere, that could be brought by liberalization.

ARGUMENTS AGAINST LIBERALIZATION

 Many people oppose liberalization on the grounds that legal profession is not a business and therefore should not be put on sale; this is ironical because they themselves want to protect their business by not letting foreign firms enter. Some oppose the idea on the ground that it will place incumbent lawyers on an uneven playing field in comparison to well established foreign firms. Some also fear that the best talent would be recruited by these firms and they would be left with the less talented. Many others sayit would be against India’s national interest to liberalize legal sector.

CHANGING MINDSET

Recently, Society of Indian Law Firms (SILF) recognized the need to liberalize the sector and asked the government to carry out reforms for the same. This shows the changing mindset of the legal fraternity and its willingness to welcome foreign peers in the market. The onus of globalizing the legal arena now rests with the government.

BENEFITS OF LIBERALIZATION

The liberalization of the legal sector will lead to a competitive arena where even the established players will strive to match the legal prowess of foreign firms. This will lead to more choices and better quality of services available to consumers at competitive rates, since consumers always seek better quality. International trade of legal services will surely help India to penetrate into the global legal sector. It will also aid in development of India in fields such as arbitration and conciliation as they will become more familiar to practices of foreign lawyers and firms. Indians might also get to practice in countries where they are currently restricted if we let the foreign firms enter our legal market. The quality of service could improve if we work along foreign firms who have more experience and expertise in international laws. Thus, Indian legal service sector has to gain and not lose with the entry of foreign peers.

Liberalization will increase the career opportunities for law graduates as foreign firms will be willing to employ local lawyers at lucrative salaries. It might help resolve the problem of unemployment in the legal sector and prevent brain drain as they could work for world class foreign firms while remaining in India. It will also bring FDI and help in building good relations with other countries which might help in enhancing trade. In the report, ‘Managing Request-Offer Negotiations under the GATS: The Case of Legal Services’, which was a part of OECD study on trade in services, MG Grossostated international trade in legal services as a catalyst to foreign investment, which also acts as security in an indigenous business environment. Investment in the service sector of India is much needed and legal services could be one of those as it is associated with high demand. A2004 World Bank study, ‘Sustaining India’s Services Revolution: Access to Foreign Markets, Domestic Reform and International Negotiations’  showed a direct relationship between liberalization and growth of various sub-sectors of India. The services liberalized in 1990s showed faster growth than services that were still kept confined to local service providers. Therefore liberalization promotes national interest as opposed to the views of some overprotective people who mistake protectionism as national interest.

Regarding the fear that all bright minds will be taken over by foreign firms, we need to understand that they can employ the most talented students without coming to India in the countries where they already operate. Therefore, it is better that a bright lawyer be employed in India rather than in Singapore or elsewhere. There is also a fear that pseudo colonialism will follow liberalization and Indian firms will be unable to face the tough competition from foreign firms. However, such competition is necessary for potential overall growth of the profession. It will help India make a name in international legal profession.

With the onset of liberalization, our Legal Process Outsourcing (LPO) will also develop to a great extent. In some countries such as US there is lack of trust in Indian firms with regards to confidentiality and quality. When foreign firms start practicing in India, more services will be outsourced to India because these firms will already have a trust base in their countries. Work will be outsourced to them and they will employ Indians to research and work for them. It will also establish credibility of Indians in global legal sector.

IMPLEMENTATION

Given all these benefits, the liberalization should be done in a planned manner unlike in 2005 when the UK JETCO (Joint Economic and Trade Committee) report suggested liberalization of the sector but no fruitful conclusion could be arrived at due to lack of coherent planning. The government along with Bar Council of India and State Bar Councils must be brought on the same page so that proper implementation is carried out and maximum benefits are harnessed. Liberalization should take place in a phased manner. Lalit Bhasin, president of SILF, recently suggested liberalization to be implemented in four phases, so that foreign players can enter the arena without disturbing the market drastically.The first phase, according to him, should only permit online services before letting firms advise clients on international law in the second phase. They should be permitted collaborative advice mechanism in the third stage and only in the last stage be allowed to practice in domestic laws. However, four phases seem too many and several firms also might not want to enter such a market where there are a large number of restrictions. However, there seems no harm in merging first two phases. Firms can be allowed directly to advise clients on foreign law and at the same time collaborate with Indian firms on Indian law. When they gain expertise on the subject, they shall be allowed to practice and directly recruit Indian employees without any compulsion for joint venture.

However, some regulations are necessary for the liberalization process. It should not create a monopoly in legal market and regulations must ensure fair treatment to all. Some rules need to be there to maintain the dignity and nobility of legal profession. As far as the question of level playing field is concerned, entry of major foreign firms can be restricted for a certain time after liberalization. SILF is opposed to the idea of entry of Big Four namely Deloitte, PwC, EY and KPMG. This concern is justified keeping in mind the fact that Indian firms might not be able to compete with them and they might take huge chunk of market share. However, in the long term, when Indian firms becomemore competent, the whole market should be liberalized.

CONCLUSION

The future of Indian legal services looks not very promising if we continue to maintain status quo. Liberalization will stimulate a number of new developments. By opening our legal sector to other countries, we can build good international relations in other areas as well which will ultimately lead to increased FDI.Foreign investors are now averse of investing due to legal complexities but once they get the opportunity, they will readily invest in India considering the huge demand of legal services in the country. By engaging with foreign firms on regular basis in India, the potential of Indian lawyers will be harnessed to a greater extent as they will get to compete with better lawyers. It will also help mitigate migrations in the legal field by encouraging legal professionals and aspirants to work with top quality law firms in India itself.   Liberalization is necessary for the development of legal profession in India to make it competitive, at par with global standards. John Carre said, ‘There is one thing worse than change and that’s the status quo’, therefore we need to break the status quo and amend the Advocates Act, 1961 to liberalize the legal sector.

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South Asia

How Free Is India?

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Under Narendra Modi’s virulent Hindu nationalist leadership, India has lost another prize:  it is no  longer designated as ‘Free’ in the latest Freedom House freedom report.  Based on civil liberties and political rights, the country rankings are published annually, and India’s new classification is “Partly Free’ like arch rival Pakistan.

Suffering a progressive decline since Modi took over, India barely made the cut-off last year scoring 71.  For comparison, a country like Canada scores 98, the UK 93 and the US only 83.  Norway, Sweden and Finland are the only three countries with a perfect score of 100.

If China under Xi Jinping is grasping for top economic status, living there is no panacea according to the Freedom House report.  It is one of a very few countries given a negative for political rights and only 11 for civil liberties scoring a total of 9.  Yes, that’s a single digit and close to countries like Saudi Arabia 7 and Tajikistan 8.

India, however, considers itself a democracy, so what has happened there?  The answer of course is that Modi happened, and Yogi Adityanath, an extreme right-wing nationalist appointed by Modi to run India’s most populous state, happened.  Then discriminating laws and laws curbing dissent happened.  

There is also the Citizenship Amendment Act (CAA) which excludes Muslims from its benefits and the associated National Register of Citizens (NRC) which penalizes and requires proof of citizenship, again targeting the vulnerable.  Critics call it an act with the potential to rob India’s 200 million Muslims of their nationality.

Political parties other than the ruling BJP say that they will not implement the acts in the Indian states where they run the provincial governments.  The central government contends they must, setting the stage for a lawsuit.

In the enduring Kashmir problem, Kashmiris who are predominantly Muslim are fully aware of their status in an India that now seeks to unify Kashmir with India without their consent and with their status as citizens subect to social inequity.  If citizenship is a sense of belonging, in Modi’s India it appears to cohere specifically around a Hindu identity — Muslims, Sikhs, Christians and Parsis need not apply … unless they are willing to be second-class citizens.

Consider the case of a Muslim primary school teacher, Farida Begum, charged with sedition and jailed awaiting trial.  She and her students put on a school play about the CAA and NRC, the latter requiring proof of citizenship and the former marginalizing Muslims by exclusion.  In the play, a woman complains how a boy who was selling tea (a reference to Mr. Modi’s tea shop from his early days) is now demanding documents and how she might have to dig up the graves of ancestors to find them.  The teacher and the mother of the play’s lead have been charged with sedition — sedition with 9-year old girls might appear to be risible but apparently not in Modi’s India.

In this India of a tea-seller from Gujarat with ridiculous sedition laws and blatantly discriminatory citizenship acts, it is a natural consequence that Freedom House (a respected think tank with a history going back to 1941) in its latest annual report should no longer classify it as a free country, for it is not.

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Pakistan: Politics entered into a new phase

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Although Prime Minister (PM) Imran Khan got the vote of confidence from Parliament and seems his grip over politics. No doubt that the masses in Pakistan still believe that he is an honest, sincere, and visionary leader. But many questions are rising in their minds. Like: why he opted for seeking a vote of confidence from the Parliament: was he obliged? Any legal requirement? Was he wanted to prove his popularity? Etc.

Irrespective of Senate elections, he was not legally bound to seek a vote of confidence from the Parliament. In Pakistan’s history, one of the prime ministers got a vote of confidence from the Parliament but could not survive longer and have to leave his prime minister-ship soon.

Will PM Imran Khan complete his remaining tenure till 2023 comfortably? Should he stay relax once getting a vote of confidence and proving his popularity? Should he conceive all is fine and his Prime Ministership is out of danger? Will the opposition stay calm and quiet till 2023 for the next general election in the country? And so on, many questions need to be answered.

True, it is absolutely true that PM Imran Kahn, for 178 votes in the National Assembly and secured his confidence in the Parliament. It was only the vote of filthy wealthy parliamentarians; they might not be reflecting the views of the masses. They got elected in the general elections held in 2018 but have lost contact with the masses in their own constituencies. PM Imran Khan also has in isolation from his voters. A specific class has encircled him and keep a distance between him and the masses. They do not know how tough is life for the majority of masses in their constituencies. The cost of life, inflations, and price-hike have made their lives miserable.

Interior Minister Shaikh Rashid Ahmed, who is a well-known public leader and representative, has expressed his views just after the vote of confidence in the Parliament that the Prime Minister should take notice of Government Servants Salary structure, which has not been revised for a long time. In contrast, the inflation and price-hike have made their lives miserable.  I fact majority of the masses are facing hardship due to price-hike and are not satisfied with the Governance of PM Imran Khan. They might reflect their anger in the next general elections.

PM Imran Khan has struggled 22 years to become 22nd Prime Minister of Pakistan. He made several promises to the public to seek their support during the election campaign. People of Pakistan shown trust in him and voted for him. But after becoming Prime Minister, he has not met the expectations of the masses or his voters. He has not fulfilled some of his promises. Especially his promises affecting the common person and masses are not fulfilled, which might harm his political career.

The country is still facing an economic crisis, joblessness, poverty, corruption, lack of merit, denial of justice and lack of health care and education, etc. The masses are still suffering and living a miserable life.

PM Imran Khan cares a lot for the imported elite and which was reflected in the senate elections. He has chosen 15 out of 27 cabinet members from outside the hardcore PTI members. His choice of imported, dual national, foreign nationals, and electives from other parties will not stand with him once he is in deep crisis and may travel abroad, leaving him alone. Some of his cabinet members, who have not to stake in Pakistan, or on the pay role of foreign countries, may not rescue him in severe crises. At the cost of few cabinet members, he should not offend his loyal workers and PTI members.

This is when he should think twice about what caused him to seek the vote of confidence. How should he serve Pakistan in the capacity of Prime minister, where he can meet the masses’. It is masses whose votes make a difference. The elite is not more than 10% in the country, and their vote bank can not make him Prime Minister again.

On the other hand, the opposition is intended to give him a hard time and may not spare him to relax or enjoy the prime ministership longer. The masses, due to dissatisfaction, may be exploited by the opposition.

As a matter of fact, Pakistan’s politics has entered into a new phase, and it is suggested that PM Imran Khan availing this opportunity, should re-evaluate the situation and revise some of his policies and take merit-based righ decisions. It is never too late!

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COVID-19 pandemic and positives/negatives of the Pakistani government’s policy towards it

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The covid-19 erupt from Wuhan in December 2019. The first case in Pakistan was observed on February 26th, 2020.It is considered a global pandemic because of its contagious nature. It has engulfed many lives and economies. Whereas Pakistan, despite its socioeconomic and political problems, has tackled covid-19 efficiently so far. Objectives of these policies were to contain and mitigate the spread of covid-19. Pakistan made effective policies to hamper the unfurling nature of covid-19. It was praised by the director-general of WHO and he mentioned it as a lesson for the rest of the world. The upshots of the policies on its citizens were both positive and negative, but they helped a lot in sailing through covid-19.

Covid-19 has accentuated the inadequacy of the health sector. However, to combat covid-19, RFCC assists hospitals to evolve their capacities to provide treatments. Many hotels and motels were converted into quarantine centers. Number of ventilators, gears, beds, and testing capability has been increased. Pakistan got a loan of $760M to improve its medical handling. These policies seem effective as they are the major line to combat covid-19. Number of staff has also increased. These policies play a crucial role in containing Corona virus but due to lack of awareness, many people didn’t get tested. Overall, it played a positive role.

“Out of 220M population, 25% are living below the poverty line and 30% live in grave poverty,” said the PM Imran khan. Therefore, containing the poverty and retaining the economy is an arduous task. For this purpose, the Ehsas program was launched with a stipend money of Rs.12000 for the vulnerable. Employees wouldbe paid a salary during complete lock-down. The government displayed leniency in paying taxes to accelerate the investment. The banks remained open during the nationwide lock-down. However, an in-depth analysis reveals that Ehsas program didn’t prove effective due to the absence of a proper tracking system. The poor and needy people in rural areas were not affable with the technology, therefore they were unable to enroll in this program.

Moreover, the government’s policy of smart lockdown cannot be ignored. It started in April, targeting the disease hotspots. The purpose of this policy was to provide a breathing space to the most vulnerable section of the society. Because nationwide lock-down was threatening food security. Smart lock-down technology played a crucial role and made Pakistan distinctive around the world.

To dampen the adverse effects of covid-19 on society, section 144 was implemented to avoid public gathering. According to the health ministry “home quarantine, zoning of hospitals, and social distancing should be in the nitty-gritty of the policy.” They imposed a ban on air traffic and started screening at the airports for international travellers these measures proved beneficial to some extent. But unfortunately the government couldn’t ensure the SOPs.

In a nutshell, the aforementioned account enables a worthy conclusion that Pakistan has managed to contain the devastating effect of covid-19, however, the danger is not over yet. The second wave of covid-19 has started globally which can overturn the successful results other way round. Therefore, some stringent action should be taken to make the policy of containment of covid-19 more effective that is only possible if there is a consensus between the federal and provincial governments. The only way to limit the dangers of the virus is to come up with the unified and all inclusive national plans.

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