Isabella Mariam

The Delhi High Court undertook a detailed examination of the Bar Council of India’s disciplinary framework for foreign lawyers and foreign law firms, questioning how the Council’s 2022 Rules permit penalties to be imposed at the preliminary stage itself. A division bench of Chief Justice DK Upadhyaya and Justice Tushar Rao Gedela expressed concern that the scheme of the Rules does not provide any mechanism beyond an initial assessment before sanctions such as suspension can be ordered.

“In case the Rules envisage only one inquiry termed as preliminary inquiry, in that case foreign lawyer or law firm needs to be given opportunity of hearing and producing evidence and responding to the allegations. Such opportunity would include providing documents on the basis of which inquiry is initiated,” the bench said while hearing the petition filed by Avimukt Dar and others.

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Justice Gedela observed that disciplinary jurisprudence ordinarily involves two stages—an initial evaluation followed by a show-cause notice if the allegations merit further action. “Here you are not doing that. First you conduct a preliminary inquiry, without anything, you say if you find (merits in allegations), you will impose penalties, minor or major,” he remarked.

The Chief Justice questioned the structure of the Rules themselves. “There is nothing like preliminary inquiry in these Rules. These Rules are faulty…. Once you assess the merits of allegations then full fledged inquiry must start. If you come to a prima facie satisfaction on that basis alone you can suspend or confiscate the certificate of practice. How can you do all this?”

Senior Advocate Amit Sibal, representing the petitioners, said the regulatory scheme is creating “huge confusion,” adding: “Nobody knows what they mean. There is a much larger problem. The Rules were brought to bring clarity but the result is opposite.”

CJ Upadhyaya pressed the Bar Council on the procedural gap: “How will these Rules operate? You talk about preliminary inquiry to assess merits of allegations. Once you assess, either you drop the proceedings or you proceed further. Where is the proceed further procedure provided here?…. What kind of Rules are they?”

Justice Gedela added: “We expect you to do something about this. No doubt that preliminary inquiry report need not be shared but you are calling them with evidence and then imposing penalties. This doesn't seem to be going well. It cannot be.”

The August 5 show-cause notice alleged that IndusLaw had entered into an impermissible arrangement with international firm CMS and breached the foreign-lawyer rules by adopting the name “CMS IndusLaw.” The Bar Council simultaneously issued a press release naming CMS IndusLaw and Dentons Link Legal, a move the High Court—while hearing Dentons’ challenge—had previously described as prejudicial.

A further notice dated November 4 was later issued to CMS IndusLaw and CMS London, referring to a review of the record and requiring personal appearance, with a warning that non-attendance could be treated as lack of cooperation.

CMS IndusLaw maintains that its collaboration with CMS is limited to brand licensing and referral work permitted under Rule 9(iv), and that the Indian practice remains independent in governance and finances.

Dentons Link Legal had earlier succeeded in securing interim relief when the High Court directed the Bar Council to withdraw its press release and refrain from acting on its notice. However, the Council’s October 21 clarification—interpreted by many firms as restricting even referral or brand-sharing alliances—renewed industry concerns about the stability of long-standing cross-border partnerships.

The petitioners have challenged the Bar Council’s actions on multiple fronts:

1. Challenge to the validity of the Rules: They argue that the Advocates Act does not empower the Council to regulate foreign lawyers and rely on the 266th Law Commission Report and the withdrawn Advocates (Amendment) Bill, 2025, which had contemplated vesting such authority in the Central Government.

2. Constitutional objections: The Rules are claimed to violate Articles 14, 19(1)(g), and 21 by placing disproportionate restrictions on Indian lawyers while exempting foreign lawyers from domestic disciplinary control under Rule 8.

3. Jurisdictional defects in notices: The August 5 and November 4 notices are alleged to be unsupported by disclosure of materials relied upon, and the prior press releases are cited as evidence of a pre-determined stance.

4. Interim prohibition on disciplinary steps: The petition seeks to restrain the Council from continuing proceedings until the writ is adjudicated.

5. Access to all underlying material: The petition refers to unanswered requests dated August 20 and October 2 seeking the documents and communications forming the basis of the allegations.

The petition also questions the October 21 press release, which the petitioners say impermissibly expands the Rules by prohibiting Indian firms from participating in international networks—an interpretation they argue has no basis in the text of the regulations.

The bench was informed that although the Bar Council required a written response to the August 5 notice, the supporting material had not been supplied before issuing the November 4 hearing notice. Sibal argued that this deprived the petitioners of an effective opportunity to reply.

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Issuing notice, the Court held that if the inquiry underway is the sole inquiry contemplated, natural justice requires that the material relied upon be shared. “We will have to perhaps read down the Rule. Preliminary inquiry word is not done. It should be inquiry.… Either they should amend it or it needs to be read down,” the Chief Justice said.

The Court directed the petitioners to file documents referenced in the Bar Council’s show-cause notice and instructed the Bar Council not to take a final decision. The proceedings scheduled for November 16 before the Council were deferred.

The matter is listed next for November 18.

Case Title: Avimukt Dar & Ors v. Bar Council of India & Anr

Bench: Chief Justice DK Upadhyaya and Justice Tushar Rao Gedela