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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

India’s Unclear Neighbourhood Policy: How to Overcome ?

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India has witnessed multiple trends with regards to its relations with its neighbours at a time vaccine diplomacy is gaining prominence and Beijing increasing the pace towards becoming an Asian superpower, whereby making these reasons valid for New Delhi to have a clear foreign policy with respect to its neighbourhood.

Introduction

The Covid Pandemic has led to increased uncertainty in the global order where it comes to power dynamics, role of international organisations. New Delhi has tried to leave no stone unturned when it comes to dealing with its immediate neighbours.  It has distributed medical aid and vaccines to smaller countries to enhance its image abroad at a time it has witnessed conflicts with China and a change in government in Myanmar. These developments make it imperative for New Delhi to increase its focus on regionalism and further international engagement where this opportunity could be used tactically amidst a pandemic by using economic and healthcare aid.

According to Dr. Arvind Gupta, New Delhi has to deal with threats coming from multiple fronts and different tactics where it is essential for New Delhi to save energy using soft means rather than coercive measures.. India under Vaccine Maitri has supplied many of COVAXIN doses to Nepal, Bangladesh and Sri Lanka where many have appreciated this move. The urgency of ensuring humanitarian aid during these periods of unprecedented uncertainty are essential in PM Modi’s Security and Growth For All ( SAGAR) initiative, which focusses on initiating inclusive growth as well as cooperation in the Indian Ocean Region.

This pandemic witnessed various threats coming in India’s neighbourhood through multiple dimensions which include maritime, land, cyber as well as air threats where adversaries are using these to put pressure on New Delhi to settle land as well as marine disputes as per their terms.  These encirclement strategies have made it necessary for India to open up various options such as holding maritime joint exercises with like-minded countries, developing partnerships, providing economic as well as healthcare support to weaker countries plus having a clear insight about changing global dynamics and acting as per them.

This piece will discuss about various changing tactics, pros and cons which India has with respect to developing its national security vis-à-vis its neighbourhood, why should it prioritise its neighbourhood at the first place?

Background

India’s Neighbourhood is filled with many complexities and a lot of suspicion amongst countries, some viewing India because of its size and geography plus economic clout as a bully where it is wanting to dominate in the region putting others aside. This led to New Delhi play an increased role in nudging ties first with its neighbours with whom it had multiple conflicts as well as misunderstandings leading to the latter viewing Beijing as a good alternative in order to keep India under check.

Ever since PM Modi has taken charge at 7 RCR, India’s Neighbourhood First Policy has been followed increasingly to develop relations, to enhance understandings and ensure mutual cooperation as well as benefit with its neighbours. The relations with Islamabad have not seen so much improvement as compared to other leaders in the past. Even though former Prime Minister Nawaz Sharif was invited for PM Modi’s 1st Swearing In ceremony in 2014, terrorist activities have never stopped which could be seen through Pathankot, Uri and Pulwama terror attacks which killed many of the Indian soldiers. Even though surgical strikes were conducted on terror camps in retaliation to these bombardments, Islamabad has not changed its heart at all about its security or regional demands. New strategies and friendships are being developed where Beijing has played a major role in controlling power dynamics.

The Belt and Road initiative, first time mentioned during President Xi’s 2013 speech in Kazakhstan, then officially in 2015,  lays emphasis of achieving a Chinese Dream of bringing countries under one umbrella, ensuring their security, providing them with infrastructure projects such as ports, railways, pipelines, highways etc. The main bottleneck is the China Pakistan Economic Corridor when it comes to India’s security threats, passing through disputed boundaries of Gilgit and Baltistan in Pakistan Occupied Kashmir till Gwadar. Other projects have been initiated in Chittagong, Hambantota, Gwadar , Kyapkyou. These projects form a String Of Pearls in the Indo Pacific where New Delhi is being balanced against through economic plus development incentives being given to the member countries under the project. That’s why in the recent past, New Delhi is asserting its influence in the region, looking at new dimensional threats where Beijing’s threats in the maritime domain in the islands in East as well as South China seas are not being seen favourably in many countries such as ASEAN, US, Australia and Japan which is giving India an opportunity to look towards countries with a common threat. Amidst this great power struggle between Washington and Beijing, New Delhi is stuck between a rock and hard place i.e., having a clear and strong foreign policy with its neighbours.

In this region, India has a sole threat which is mainly Beijing where the latter has achieved prowess technologically and militarily where New Delhi lags behind the latter twenty fold. So, there is a need for improvising military technology, increase economic activities with countries, reduce dependence on foreign aid, ensure self-reliance.

Situation

South Asia is backward when it comes to economic development, human development and is a home to majority of the world’s population which lives below poverty line. The colonial rule has left a never-ending impact on divisions based on communal, linguistic and ethnic grounds. Even, in terms of infrastructure and connectivity, New Delhi lags behind Beijing significantly in the neighbourhood because the latter is at an edge when it comes to bringing countries under the same umbrella. Due to these, many initiatives have been taken up by New Delhi on developing infrastructure, providing humanitarian aid to needy countries.

There have been numerous efforts made by India with respect to reaching out to the Neighbours in 2020 through setting up of the SAARC Covid Fund where many Neighbourhood countries such as Nepal, Bangladesh and Sri Lanka gave contributions to ensure cooperation, joint scientific research, sharing information, healthcare kits where the countries contributed USD $ 18 million jointly towards this fund where New Delhi made an initial offer of USD $ 10 million.

New Delhi has even mustered ties with the Association of Southeast Asian countries during the pandemic under its Act East Policy where proper connectivity through the Northeast could be useful in easing movement of goods but currently, the infrastructure in Northeast needs more improvement where issues such as unemployment, poor connectivity are prevalent whereby disconnecting it from rest of the other states. This region could play an important role in linking Bangladesh, Myanmar to New Delhi along with the proposed India-Thailand –Myanmar Trilateral Corridor. Focus has also been laid to develop inland waterways, rail links and pipelines to ease connections between countries, making trade free and more efficient.

India is focussing on developing the Sittwe and Paletwa ports in Myanmar under the Kaladan Development Corridor, at the cost of INR 517.9 Crore in order to provide an alternative e route beneficial for the Northeast for getting shipping access

Summing Up

 These above developments and power display by a strong adversary, give good reasons for New Delhi to adopt collective security mechanisms through QUAD, SIMBEX and JIMEX with a common perception of having safe and open waters through abiding to the UNCLOS which China isn’t showing too much interest in, seen through surveillance units, artificial islands being set up on disputed territories which countries likewise India are facing in context to territorial sovereignty and integrity. These developments make it important for India to look at strategic threats by coming together with countries based on similar interest’s vis-à-vis Chinese threat.

There is a need for India to develop and harness its strength through connectivity and its self reliance initiative ( Aatmanirbharta ) so that there is no dependence on any foreign power at times of need . Proper coordination between policy makers and government officials could make decision making even easier, which is not there completely because of ideological differences, different ideas which makes it important for the political leadership to coordinate with the military jointly during times of threats on borders. Self-reliance could only come through preparedness and strategy.

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India is in big trouble as UK stands for Kashmiris

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 A London-based law firm has filed an application with British police seeking the arrest of India’s army chief and a senior Indian government official over their alleged roles in war crimes in Indian-administered Kashmir.

Law firm Stoke White said it submitted extensive evidence to the Metropolitan Police’s War Crimes Unit on Tuesday, documenting how Indian forces headed by General Manoj Mukund Naravane and Home Affairs Minister Amit Shah were responsible for the torture, kidnapping and killing of activists, journalists and civilians – particularly Muslim – in the region.

“There is strong reason to believe that Indian authorities are conducting war crimes and other violence against civilians in Jammu and Kashmir,” the report states, referring to the territory in the Himalayan region.

Based on more than 2,000 testimonies taken between 2020 and 2021, the report also accused eight unnamed senior Indian military officials of direct involvement in war crimes and torture in Kashmir.

The law firm’s investigation suggested that the abuse has worsened during the coronavirus pandemic. It also included details about the arrest of Khurram Parvez, the region’s most prominent rights activist, by India’s counterterrorism authorities last year.

“This report is dedicated to the families who have lost loved ones without a trace, and who experience daily threats when trying to attain justice,” Khalil Dewan, author of the report and head of the SWI unit, said in a statement.

“The time has now come for victims to seek justice through other avenues, via a firmer application of international law.”

The request to London police was made under the principle of “universal jurisdiction”, which gives countries the authority to prosecute individuals accused of crimes against humanity committed anywhere in the world.

The international law firm in London said it believes its application is the first time that legal action has been initiated abroad against Indian authorities over alleged war crimes in Kashmir.

Hakan Camuz, director of international law at Stoke White, said he hoped the report would convince British police to open an investigation and ultimately arrest the officials when they set foot in the UK.

Some of the Indian officials have financial assets and other links to Britain.

“We are asking the UK government to do their duty and investigate and arrest them for what they did based on the evidence we supplied to them. We want them to be held accountable,” Camuz said.

The police application was made on behalf of the family of Pakistani prisoner Zia Mustafa, who, Camuz said, was the victim of extrajudicial killing by Indian authorities in 2021, and on behalf of human rights campaigner Muhammad Ahsan Untoo, who was allegedly tortured before his arrest last week.

Tens of thousands of civilians, rebels and government forces have been killed in the past two decades in Kashmir, which is divided between India and Pakistan and claimed by both in its entirety.

Muslim Kashmiris mostly support rebels who want to unite the region, either under Pakistani rule or as an independent country.

Kashmiris and international rights groups have long accused Indian troops of carrying out systematic abuse and arrests of those who oppose rule from New Delhi.

Rights groups have also criticized the conduct of armed groups, accusing them of carrying out human rights violations against civilians.

In 2018, the United Nations human rights chief called for an independent international investigation into reports of rights violations in Kashmir, alleging “chronic impunity for violations committed by security forces”.

India’s government has denied the alleged rights violations and maintains such claims are separatist propaganda meant to demonize Indian troops in the region. It seems, India is in big trouble and may not be able to escape this time. A tough time for Modi-led extremist government and his discriminatory policies. The world opinion about India has been changed completely, and it has been realized that there is no longer a democratic and secular India. India has been hijacked by extremist political parties and heading toward further bias policies. Minorities may suffer further, unless the world exert pressure to rectify the deteriorating human rights records in India.

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S. Jaishankar’s ‘The India Way’, Is it a new vision of foreign policy?

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S. Jaishankar has had an illustrious Foreign Service career holding some of the highest and most prestigious positions such as ambassador to China and the US and as foreign secretary of India. Since 2019 he has served as India’s foreign minister. S. Jaishankar also has a Ph.D. in international relations from JNU and his academic background is reflected in this book.

His main argument is simplistic, yet the issues involved are complex. Jaishankar argues that the world is changing fundamentally, and the international environment is experiencing major shifts in power as well as processes. China is rising and western hegemony is declining. We are moving away from a unipolar system dominated by the US to a multipolar system. Globalization is waning and nationalism and polarization is on the rise (p. 29). The old order is going away but we cannot yet glimpse what the future will look like. This is the uncertain world that Dr. Jaishankar sees.

Dr. Jaishankar also argues that India too has changed, it is more capable and more assertive. The liberalization program that began in 1991 has made the Indian economy vibrant and globally competitive and it is well on track to becoming the third biggest economy in the world, after China and the US.  The war of 1971 that liberated Bangladesh, the liberalization of the economy after 1991, the nuclear tests in 1998 and the nuclear understanding with the US in 2005, Jaishankar argues are landmarks in India’s strategic evolution (p. 4). So given that both India and the system have changed, Jaishankar concludes, so should India’s foreign policy.

But his prescription for India’s foreign policy, in the grand scheme of things, is the same as before – India should remain nonaligned and not join the US in its efforts to contain China. India will try to play with both sides it seems in order to exploit the superpowers and maximize its own interests (p. 9). But he fails to highlight how India can find common ground with China other than to say the two nations must resolve things diplomatically. He also seems to think that the US has infinite tolerance for India’s coyness. In his imagination the US will keep making concessions and India will keep playing hard to get.

Jaishankar has a profound contradiction in his thinking. He argues that the future will be determined by what happens between the US and China. In a way he is postulating a bipolar future to global politics. But he then claims that the world is becoming multipolar and this he claims will increase the contests for regional hegemony. The world cannot be both bipolar and multipolar at the same time.

There is also a blind spot in Jaishankar’s book.  He is apparently unaware of the rise of Hindu nationalism and the demand for a Hindu state that is agitating and polarizing India’s domestic politics. The systematic marginalization and oppression of Muslim minorities at home and the growing awareness overseas of the dangers of Hindutva extremism do not exist in the world that he lives in. He misses all this even as he goes on to invoke the Mahabharata and argue how Krishna’s wisdom and the not so ethical choices during the war between Pandavas and Kauravas should be a guide for how India deals with this uncertain world – by balancing ethics with realism (p. 63). Methinks his little digression in discussing the ancient Hindu epic is more to signal his ideological predilections than to add any insights to understanding the world or India’s place in it.  

One aspect of his work that I found interesting is his awareness of the importance of democracy and pluralism. He states that India’s democracy garners respect and gives India a greater opportunity to be liked and admired by other nations in the world (p. 8). Yet recently when he was asked about the decline of India’s democratic credentials, his response was very defensive, and he showed visible signs of irritation. It is possible that he realizes India is losing ground internationally but is unwilling to acknowledge that his political party is responsible for the deterioration of India’s democracy.

This is also apparent when he talks about the importance of India improving its relations with its immediate neighbors. He calls the strategy as neighborhood first approach (pp. 9-10). What he does not explain is how an Islamophobic India will maintain good relations with Muslim majority neighbors like Bangladesh, Maldives, and Pakistan.

The book is interesting, it has its limitations and both, what is addressed and what is left out, are clearly political choices and provide insights into how New Delhi thinks about foreign policy. So, coming to the question with which we started, does India have a new foreign policy vision? The answer is no. Dr. Jaishankar is right, there is indeed an India way, but it is the same old way, and it entails remaining nonaligned with some minor attitudinal adjustments.  

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