Recognising General Counsel under the Advocates Act and Bar Council Regulations

The legal profession in India has long been a cornerstone of justice, governance and nation-building. However, the rapid evolution of economic paradigms, regulatory frameworks and global interconnectivity demands a profound rethink of its structures, roles and regulatory frameworks.

Among the most pressing issues is the lack of legal and regulatory recognition for General Counsel (GCs) as advocates under the Advocates Act, 1961, and Bar Council regulations.

While India remains rooted in the common law tradition, it lags behind other common law countries in recognising the critical role GCs play in shaping business strategies, governance and compliance. Without a reimagined legal framework that accommodates the changing role of GCs, the profession risks becoming a bottleneck in India’s economic aspirations.

Static framework in a dynamic economy

India’s legal profession remains constrained by an outdated framework that has largely failed to keep pace with the nation’s transformation into a global economic force. Regulations under the Advocates Act, 1961 and the Bar Council of India (BCI) Rules often adhere to traditional notions of practice, failing to account for the nuanced and multi-faceted role played by in-house legal professionals like General Counsel.

While the economy has embraced innovation, privatisation, and globalisation, the legal framework remains mired in the past. This dissonance hinders not only the legal profession, but also the businesses and industries that rely on dynamic legal support to navigate an increasingly complex regulatory environment.

Learning from other Common Law jurisdictions

In countries like the United States, the United Kingdom, Canada, Australia, Singapore and Hong Kong, GCs are recognised as essential components of the legal profession. Regulatory frameworks in these jurisdictions explicitly acknowledge the dual role of GCs as legal advisors and business enablers. They permit GCs to appear in courts, provide privileged legal opinions and function as fully integrated members of the legal ecosystem.

In contrast, India treats in-house counsels as corporate employees, often excluding them from privileges such as appearing in court or maintaining active enrollment with bar councils. This dichotomy fails to reflect the ground realities of modern corporate practice, where GCs are indispensable in managing risks, ensuring compliance and aligning legal strategies with business goals.

General Counsel are no longer confined to advisory roles. They are at the forefront of:

• Shaping corporate governance frameworks.

• Driving compliance with complex domestic and global regulations.

• Leading sustainability initiatives like ESG compliance.

• Managing crises, including litigation, data breaches and regulatory scrutiny.

Yet, the lack of recognition under the Advocates Act and BCI regulations limits their professional standing. For instance, many GCs are required to surrender their bar enrollment upon assuming in-house roles, as they are considered to be in “non-practicing” positions. This not only undermines their status but also deprives the legal profession of a vital segment of expertise and experience.

Learning from other professions

Unlike advocates under the Bar Council regulations, professionals in other fields - such as Chartered Accountants (CAs), Company Secretaries (CS), and Cost Accountants - are permitted to remain members of their respective professional institutes even when employed full-time. They are also bound by ethical standards and receive professional recognition in their respective roles.

Redefining "practicing" lawyers

Under current Bar Council rules, an advocate enrolled with the Bar must surrender their membership upon taking up full-time employment as an in-house counsel. This rigid interpretation of “practising law” limits their professional identity and ignores the multi-faceted nature of legal practice beyond the courtroom.

The Bar Council regulations define “practising law” in a manner that heavily emphasises litigation and courtroom advocacy. This restrictive interpretation fails to recognise the broader scope of legal practice, particularly in corporate and non-litigation settings.

Practising law is not limited to courtroom advocacy; it encompasses:

• Contract negotiation and drafting.

• Corporate governance and compliance.

• Risk management and dispute resolution through arbitration or mediation.

• Advisory roles on regulatory frameworks and business strategies.

GCs lead legal departments in complex organisations, acting as strategic advisors and guardians of compliance. Their work constitutes practising law in a holistic sense, including interpreting statutes, negotiating agreements and managing legal risks.

By broadening the interpretation of practising law, the Bar Council can create an inclusive framework that recognises all aspects of legal expertise.

Proposed reforms

• Amendments to the Advocates Act: The Act must be amended to explicitly recognise GCs as advocates, allowing them to retain bar enrollment and extend privileges such as court appearances and client-attorney privilege.

• Separate Bar Council framework for GCs: Establishing a distinct regulatory framework for in-house counsel can address their unique needs, ensuring continued professional development, ethical oversight and recognition of their dual role in business and law.

• Mandatory CPD for GCs: Like other jurisdictions, India can introduce Continuing Professional Development (CPD) requirements tailored to in-house counsel, covering emerging areas like AI ethics, data protection and cross-border regulations.

• Privilege for legal advice: Legal opinions provided by GCs must be granted privilege, ensuring confidentiality and aligning with global standards.

Recognising GCs as advocates would:

• Enhance their ability to represent organisations in disputes and negotiations.

• Strengthen corporate governance by aligning business practices with ethical and legal norms.

• Encourage talent retention by ensuring GCs are not professionally disenfranchised.

The legal profession as an economic enabler

India’s ambition to become a $10 trillion economy hinges on its ability to attract investments, foster innovation, and ensure regulatory stability. A robust and progressive legal framework is critical to achieving these goals. General Counsel play a pivotal role in facilitating:

• Cross-border trade and investment: By navigating international trade laws and bilateral treaties, GCs enable businesses to expand globally.

• Regulatory compliance: Ensuring compliance with dynamic domestic and global regulations fosters investor confidence.

• Innovation and IP protection: As India emerges as a technology hub, GCs safeguard intellectual property rights and mitigate risks associated with innovation.

Addressing systemic challenges

India’s legal profession must address systemic challenges to unlock its economic potential.

• Judicial Backlog: A more integrated role for GCs in arbitration and alternative dispute resolution (ADR) mechanisms can ease the burden on courts.

• Ease of doing business: Simplifying regulatory processes and empowering GCs to take proactive measures can improve India’s ranking in global indices.

• Sector-specific expertise: From fintech to renewable energy, emerging industries require specialised legal expertise. Recognising GCs as advocates would encourage specialisation and innovation.

a) Adopting a Common Law evolutionary approach

India’s Common Law heritage provides a strong foundation, but the country must adopt the evolutionary mindset seen in other jurisdictions. For example:

• The UK’s Solicitors Regulation Authority (SRA) recognises in-house counsels as a vital part of the profession.

• The American Bar Association (ABA) includes corporate counsel under its regulatory framework, ensuring they have the same standing as litigators.

India must follow suit, modernising its legal regulations to reflect the realities of the 21st century.

b) Incorporating technology and innovation

Technology is reshaping the legal profession globally. From AI-driven contract analysis to blockchain-based dispute resolution, GCs are at the forefront of adopting these innovations.

Recognising their role under the Advocates Act would empower them to:

• Lead digital transformation initiatives.

• Integrate legal tech into organisational processes.

• Drive cost efficiency and transparency in legal operations.

c) Revising Bar Council Regulations

The Bar Council must embrace a forward-looking approach by:

• Allowing GCs to practice without restrictions.

• Encouraging bar councils to engage with corporate legal departments.

• Creating collaborative platforms for litigators, law firms and in-house counsel to share knowledge and expertise.

d) Promoting collaboration between law and business

Evolving the legal profession requires breaking silos. GCs must work closely with business leaders, policymakers, and regulators to:

• Shape policies that balance economic growth with legal integrity.

• Advocate for laws that encourage innovation while safeguarding societal interests.

• Foster a culture of ethical business practices.

The legal profession in India stands at a crossroads. To remain relevant in a rapidly changing world, it must rethink its foundational structures, redefine its roles, and re-evolve its frameworks. Recognising General Counsel under the Advocates Act and Bar Council regulations is not just a matter of professional equity, but an economic imperative.

India’s aspiration to be a global leader requires a legal profession that is agile, inclusive and forward-looking. By integrating GCs into the broader legal ecosystem, the country can unlock new avenues of growth, governance and innovation. It is time for India to shed the vestiges of outdated legal frameworks and embrace a future where law and business work hand in hand to drive progress.

In this journey of transformation, the role of General Counsel will be instrumental, serving as bridges between legal frameworks and economic aspirations.

Sanjeev Gemawat is the Managing Director and Group General Counsel at Essar Group.