“It’s A Mess”: Delhi HC Slams BCI On Foreign Law Firm Rules; Cautions Against ‘Castigating’ CMS IndusLaw & Dentons; Interim Bar Extended
Isabella Mariam
The Delhi High Court Division Bench of Chief Justice Devendra Kumar Upadhyaya and Justice Tushar Rao Gedela on Tuesday sharply criticised the Bar Council of India (BCI) for lacking clarity in its regulatory regime for foreign law firms, remarking that the existing framework was “a mess” as it continued hearing petitions filed by CMS IndusLaw and Dentons Link Legal. The BCI conceded in court that its rules remain “in a state of flux,” with an expert panel currently reviewing them.
The bench began by revisiting its previous direction requiring the BCI to delete references to the petitioners from a public statement announcing action against foreign law firms. While the BCI maintained that it had complied, Dentons disagreed, pointing out that the release still began with its case details, had not been withdrawn, and had in fact been “reiterated and gone further.”
The court responded that the statement did not mention the firm directly, telling Dentons Link Legal’s counsel, “This is general information—nothing is directed specifically to you.” However, the judges also warned that indirect consequences mattered. As Chief Justice Devendra Kumar Upadhyaya observed, “On the basis of this press release, if they are not allowed to indulge in functions they were engaging in prior to the press release, then you are castigating them.”
The bench then examined whether the BCI had followed the proper statutory process when drafting its rules on foreign lawyers. The BCI informed the court that its General Body had created a specialist subcommittee, which was considering a preliminary report and holding wider consultations. Any new rules, it argued, would need to remain consistent with the Supreme Court’s AK Balaji judgment, the High Court’s November 13 directives, and the principles of natural justice.
The judges were not convinced. They stressed that even in the earliest fact-finding stage, the BCI must reach a prima facie view before initiating proceedings. The court reminded the regulator, “You still have to adhere to basic principles of natural justice,” adding, “Frame the rules properly instead of so much explanation.”
In its November 13 order, the High Court had already raised serious doubts about the BCI’s initiation of proceedings against CMS IndusLaw. The show-cause notice issued on August 5 had sought extensive information—including details on the “nature, scope, and operational terms” of the CMS–IndusLaw relationship, infrastructure, branding, and staffing—yet the supporting material that triggered these concerns was never provided to the firm.
The court had expressed disbelief that the BCI issued a second notice on November 4 summoning the petitioners for personal appearance without first supplying the evidence against them. This, it noted, deprived the firms of a meaningful chance to respond. While the BCI relied on Rule 10 of the Foreign Lawyers and Foreign Law Firms Rules, 2025, the bench reiterated that a preliminary inquiry can only determine whether a prima facie case exists and cannot result in punitive consequences.
On Tuesday, the BCI informed the court that it had since shared the underlying documents with both law firms and requested that their confidentiality be protected.
The November 13 order had also questioned the coherence of the rules themselves. Rule 10(2)(a)(i) allows warnings or minor penalties after a preliminary inquiry, but Rule 10(2)(a)(ii) permits suspensions for “serious” violations even though such an inquiry is not designed to reach final conclusions. The court had warned that suspending a firm merely on a prima facie basis would violate natural justice, making disclosure of evidence indispensable. As a result, the court postponed the November 16 proceedings and barred the BCI from taking any final steps until procedural flaws were addressed.
During Tuesday’s hearing, the bench again criticised the BCI’s framework, especially its provisions enabling severe penalties based on a preliminary assessment. Addressing the BCI’s lawyer, the court remarked, “It’s a mess. Why don’t you [BCI] carry out an amendment? These rules are applicable all across the country.”
The BCI replied that it was actively gathering suggestions as part of an ongoing consultation exercise. The bench responded bluntly: “Please frame the rules properly, instead of explaining all this. You are Bar Council after all.”
The court then gave the BCI two weeks to file its counter-affidavit and listed the matter for hearing in January. The interim protection—preventing the BCI from issuing any final orders against the petitioning firms—will continue. “Don’t take the final decision,” the bench held.
During the hearing, the BCI also stated that its 2022 Rules on foreign lawyers do not require prior approval from either the Chief Justice of India (CJI) or the Central government. Senior Advocate Arvind Nigam, appearing for one of the petitioners, argued that the BCI had not demonstrated that it received such approvals. The BCI responded, “We don’t need the approval... Allow me to file a counter and I will justify.”
The petitioning firms have argued that the Advocates Act does not empower the BCI to regulate the entry of foreign law firms. IndusLaw’s plea asserts that Section 49 of the Act does not authorise such rule-making. Dentons Link Legal additionally relied on Sections 49(1)(c) and (e), which require prior approval from the CJI or the Central government for rules of this nature; without such approval, it argues, the regulations are ultra vires. Dentons has also pointed out that the Rules govern only foreign lawyers and foreign law firms without defining what constitutes an “Indian law firm.”
Both firms have also challenged the show-cause notices issued in August, which alleged unauthorised collaborations with foreign entities in violation of the BCI Rules.
The matter is listed for hearing in January
Case Title: Avimukt Dar & Ors v. Bar Council of India & Anr
Bench: Chief Justice DK Upadhyaya and Justice Tushar Rao Gedela
