Lately the Bar Council of India has brought out a notification titled “Rules for Registration and Regulation of Foreign Lawyers and Law Firms in India, 2022” paving way for many law firms and lawyers put up outside India to practice in the country. Regulation has not availed a flexibility so much so that foreign firms appear before the courts tribunals or other statuary authorities where affirmation is mandatory. But this stand taken by the Bar Council is a great shift in comparison to its act of opposing the idea of foreign based establishments to enter India, for over a decade.

The concerns regarding flow of foreign direct investments in the country will be kept on check with the possibility of India becoming a one stop destination for international commercial arbitration. Gates have been opened for promoting the practical aspects of international law and arbitration matters in India but are barred from practicing Indian law.

This is adherence to Advocates Act, 1961 which allows only those who are enrolled in Bar Council of India to be entitled to practice law in contrast to which one can appear as a litigant with the due permission of the court before which the appearance is sought after. Few matters in which these International firms and lawyers can deal with include Intellectual Property Rights, joint ventures, merges and acquisitions, drafting of contracts, etc. However, they should abstain from doing any work related to conveyancing of property, or works related to investigation of title and so on. Lawyers in India collaborating and working with the foreign lawyers will be restricted from practicing litigation-oriented matters but may deal in non-litigious practice.

IMPACT ASSESSMENT

There will be a huge scope for consolidation for firms that deal extensively in mergers and acquisitions. By allowing them to practice here, India’s recognition in the global context will increase in areas of trade and Commerce. With Artificial Intelligence (AI) surfacing largely in the years to come India will enjoy a good pool of talents diversifying the legal domain of India that will be a good assessment of how other nations treat Indian lawyers in their jurisdiction. This is in the background of the case of BCI vs AK Balaji, back in 2018 that restricted foreign law firms, corporations, and attorneys from practicing law with the litigation or non-litigation in India. A term ‘temporary fly in fly out services was introduced to be offered to the Indian clients. In the existence of this case foreign attorneys were permitted to practice commercial arbitration. But the situation in the United Kingdom was different. It authorised Indian lawyers and law forms to established the offices in England and Wales to widen the scope enough to enable them practice Indian law, international law, and bestowing the authority of providing legal advice under matters pertaining to English law. Claims what to be verified an appropriate response was to be provided accordingly. It was in the September 2022, when representatives of the Law Society of England and Wales and the UK Government of International Trade held discussions with the representatives of the Indian law firms to enable them to be a part of the legal service sector post culmination of the United Kingdom-India comprehensive Free Trade Agreement (UK-I-FTA).

In short entering into transaction businesses, and giving legal advice pertaining to laws of the country of primary qualification is one of their core functions;

1. Giving legal advice or acting as an attorney on behalf of the person whose headquarters is in the foreign country of primary qualification, but the exception being arbitration matters that are handled in India irrespective of involvement of foreign matter or otherwise. This may include representation of a person or a firm settled in foreign land of primary qualification. The legal advice in pursuant to such matters shall not include representation before the courts or tribunals but only statutory bodies which are not legally entitled to take oath or affirmation and where knowledge of foreign law is essential;

2. Advice on non-litigious matters shall only be provided by Indian advocates registered under the Advocates Act, 1961. In addition to this one has to be a partner or an associate of a foreign law practice registered in India. No additional benefits shall be accrued on account of being registered in India for the purpose of litigation;

3. For carrying out the above-mentioned activities they have to be registered with the Bar Council of India. There will be no prohibition to practice if it is done by a foreign lawyer or law firm on fly in fly out basis and an aggregate not exceeding 60 days and any 12 months period. Once the foreign firm is registered abiding by the due registration procedure, it shall be valid for a period of 5 years.

CONCERNS AND WAY AHEAD

Inspired from the trend of liberalisation these International firms will progress steadily with a lot of caution and the Indian market. Before settling down a bit they would want some clarity on the terms and conditions of functioning in India. According to the news reports few forms may want to attend the position of first mover advantage for their clients and establish a bit early in contrast to which, the other preference being to watch the space with anticipation before entering the market.

INTRODUCTION

A sky-rocketing exploration as well as progress in the space arena has necessitated the formulation of an outer space treaty or space law in India. Space law is defined as a set of regulations that bring about a parity between the adverse effects as well as the positive aspects arising out of the activities of the mankind in the space sector which are governed by a set of agreements that can be both National as well as International in nature. A supervision on the activities of unethical dimensions, deleterious weapons, liability of nations in case of negligence, etc will be possible only when a proper space law comes in place in the country.

THE NEED FOR SPACE LAW

With the developed countries strongly consolidating their presence and increasing the competition in the outer space leading to a space war, February 2017 witnessed India creating a new milestone by launching 104 satellites into the orbit of the earth. The day dawned as India’s stake in the private international market upholding the cost efficiency, reliable launching space, and spiking return on investment being the core strengths. This guaranteed a possibility for commercialization and greater scientific discovery. There is certainly no reason for India to keep the space or development in abeyance especially when it is the developer of indigenous polar satellite launch vehicle (PSLV).Being under high scrutiny in the purview of the prime minister’s office, a greater chunk of money for functioning comes from the government. The United States, Russia, and China, have already privatized their space markets by offering services that in return give exorbitant monetary gain. Though no systematic space legislations can be witnessed, The Antrix Corporation is an arm of the International Space Research Organisation (ISRO), which underscores India’s effort in establishing itself as one of the wizards of the space sector.Space law had its way in the world when the then president of The United States, Dwight D Eisenhower, introduced in the United Nations back in 1957 the concept of space laws. The matter focused on negotiations for disarmament. The term Space War can be used for today’s Era which takes back to 1990 with the populist International Law recognised every country to be bound by a responsibility to maintain peace which is very much applicable to the space laws. Things started buckling up when the world’s first artificial satellite was launched in 1957 by Russia, called as Sputnik.

TREATIES AND MUTUAL UNDERSTANDING BETWEEN NATIONS

The laws revolving around the Governance of the outer space spectrum can be dual in nature which is national and international. International level regulations are governed by the legislations like: The Outer Space Treaty 1967 which is a multilateral treaty affair of the member’s states and the impact on celestial bodies or Rescue Agreement On Rescue Of Astronauts And The Return On Objects Launched Into The Outer Space which elucidated the rights and obligations of the states concerning rescue of persons in the space sector.

India needs a space Law due to the lacuna in the treaties. The outer space Treaty emphasized that astronauts are to be rendered with all possible assistance. Albeit being this persuasive, elements like what and who is a space tourist is largely missing in terms of the meaning in these treaties. Article 7(12) of the outer space Treaty also explains the liability provision. Under the provisions in case of any violation of mutually accepted treaties by the states, the particular state will be held liable and not a private person, if any. It is also mandated that the state parties to the agreement have their own National agreement to facilitate contracts and collaborations in research and development under the liability convention. Though these legislations are largely in tandem with space positive competition, there is little in terms of punishment in the form of penal provisions. India will be able to acquire a greater commercial application of space technology at the transnational level through a good space law. Moreover, it will also understand the commercial application of space technology and the impact of it’s crash or crowding in the geostationary orbits. Hence, in furtherance to the adherence to Article 51(22) and Article 253(23) of the India Constitution which provide for implementation of international treaties, we need specific set of laws, like the Indian endeavor of INDPACE ( Indian national space promotion and authorization center) that is a good start and was the single window model agency for commercialization of space activities or procedure for implementation of space laws and SPACECOM.

CONCLUSION

It’s not to say that the Indian scenario totally lacks a proper administrative control over the space sector dealings. Activities are totally governed by the department of space established in the year 1972 before the coming of which India had the Department of Atomic Energy taking care of all the administrative activities in toto for the space sector. India never curated a space law for itself since it did not have a private sector that could invest in outer space plans. At present private sector has recognised the potential in investing in Indian space programs and exploration of space through manned and unmanned machines, which highlight the importance of a proper space law in the country. With the request to privatise the Indian space program that was put forth on May 2020, the future of Indian space law is definitely promising.

It is the outcome of a rather one-sided view of free speech law in India. Respectfully, it should not form the basis of any reasoned opinion of the court.

The 22nd Law Commission has recommended that Section 124 A of the Indian Penal Code (IPC) dealing with the offence of sedition be retained and that the minimum jail term for the offence be enhanced from three years to seven years. This could clearly be a device to serve the interest of the Centre, which might want its retention for political reasons rather than administrative exigencies.

Background:

The Supreme Court, in an unprecedented move, via its order dated May 11, 2022, forbade the use of the impugned provision and the use of coercive measures based on it.

An affidavit filed by the Centre before the Court said that the Prime Minister was of the opinion that “we need to, as a nation, work even harder to shed colonial baggage that has passed its utility, which includes outdated colonial laws and practices”.

The affidavit further said that the government “has decided to re-examine and re-consider the provision of Section 124A of the IPC”.

Expectations:

One expects the Law Commission to take positions in the larger interests of the country and to persuade the government to follow constitutional principles in the process of making and unmaking laws. The present report does not do that. It does the opposite.

Outcome:

The Law Commission’s report is neither well researched nor balanced. On the contrary, it is partisan and can have a devastating impact on the very idea of human rights in India.

When the Supreme Court is seriously considering the question of whether the judgment in Kedar Nath Singh vs State of Bihar (1962), which upheld the provision, requires to be revisited, the Commission had a duty to be more responsible and up to date.

According to the Law Commission, the threats to India’s internal security are real whereas the misuse of Section 124A is only alleged. This view is not only unrealistic but distorted. The fact is that the Supreme Court has been appraised of the long saga of the law’s misuse with illustrative instances. In fact, the journalist Sashi Kumar has listed persons who were booked under the anti-sedition provision, such as Disha Ravi, an activist, the journalist Vinod Dua, the filmmaker Aisha Sultana, Amulya Leona, a student, and so on. The law was ruthlessly used to book activists during the anti-CAA protest and in the agitation against the now-repealed farm laws.

The Commission’s recommendation, if accepted, will make the law even harsher. The report, in the guise of “removal of oddity in punishment”, calls for enhancing the minimum term of imprisonment for the offence.

Curiously, the Commission has no problem with the text of the law, which is vague and abstract, with inherent potential to trap the innocent. As a result, if these recommendations are accepted, Section 124A will remain draconian by penalising “disaffection” with the government, which would include “disloyalty”. This would mean that any opposition to the government could be labelled seditious, as during the inception of the law in 1870.

Safeguards and misuse of law

The ‘safeguards’ now prescribed cannot curtail the law’s misuse. The suggested clause for previous permission by the government for registration of an FIR based on a preliminary enquiry report by an Inspector of Police is vulnerable to political pressure.

Even with such clauses, it is for the political executive and the police officers who act under them to decide whether an act involved any such incitement. The term public disorder is overbroad and elastic.

More significantly, the report does not consider the fact that there are provisions right in the IPC dealing with offences against the State. They include Sections 121,121A, 122 and 123, all of which deal with the offence of waging war against the government or related activities.

The report distinguishes between the text of the Unlawful Activities (Prevention) Act (UAPA) and Section 124A of the IPC to say that the latter is necessary despite the existence of the former. The cardinal point is that the above stated provisions in the IPC literally and practically take in any serious attempt to sabotage the elected government, which in turn would meet the genuine requirements of the state. The Report does not deal with this aspect at all.

The components of the law on sedition as stated by the Commission are clearly different from the text of section 124A. Such ingredients are traceable in the other IPC provisions, as aforesaid. This part of the report is casual, to say the least.

There are also instances of strange comparisons in the document. For endorsing the law’s legitimacy, the Commission compares the colonial law with the police force and the idea of civil services in India, which were established by the British. The logic seems to be that anything colonial need not be unacceptable.

Conclusion:

After receiving  criticism from all corners, the government reacted promptly, with law minister Arjun Ram Meghwal tweeting. The Law Commission report on sedition is one of the steps in the extensive consultative process. The recommendations made in the report are persuasive and not binding. Ultimately, the final decision will be taken only after consulting all stakeholders. Now that we have received the report, we will hold consultations with all stakeholders so that we take an informed and reasoned decision in public interest.”