Probe agencies can't arbitrarily summon advocates over legal advice: SC

The Supreme Court on Friday ruled that investigating agencies cannot arbitrarily summon advocates for legal advice they give to clients.

 

A Bench comprising Chief Justice of India BR Gavai, and Justices K Vinod Chandran and NV Anjaria, delivered the ruling in a suo motu case taken up by the apex court. This comes after several lawyers were issued summons by investigative agencies.

 

While declining to issue exhaustive guidelines or mandate magisterial approval for summons, the court issued specific directions aimed at preserving client confidentiality while allowing legitimate investigation.

 

Justice Chandran, who authored the judgment, said the Bench sought to “harmonise the evidentiary rule with procedural safeguards.”

 

 

The court held that the privilege under Section 132 of the Bharatiya Sakshya Adhiniyam (BSA) belongs to the client and binds the advocate from disclosing confidential communications.

 

Section 132 of the BSA mandates that a lawyer cannot be compelled to reveal confidential and professional communication, advice or documents shared with clients without the express consent of the latter.

 

Building on this, the court said investigating officers or station house officers cannot summon an advocate representing an accused, except in circumstances covered by the limited exceptions under Section 132.

 

If such an exception applies, the summons must clearly record the factual basis for invoking it. 

 

It must carry written approval from a superior officer not below the rank of Superintendent of Police, who must also record satisfaction in writing.

 

Any summons issued will be open to judicial review under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

 

The privilege extends to lawyers engaged in litigation as well as advisory work, the court said.

 

The Bench said the law to protect privileged communications between the lawyer and the client is to ensure that the vast majority (of lawyers), 'who are day in and day out, involved in the task of administration of justice are not victimised or bullied into making disclosures of their communications with their clients. It may be merely for the reason of having represented a client of questionable conduct or having some ill-repute or disrepute.'

 

It clarified that Section 132 does not shield the production of documents or material evidence.

 

In criminal matters, such production must be made before the court under Section 94 of the BNSS and examined under Section 165 of the BSA, the court said.

 

In civil proceedings, it will be governed by Section 165 of the BSA and Order XVI Rule 7 of the Civil Procedure Code, it added.

 

The court further said that if a digital device is sought, it must be produced before the jurisdictional court, which will hear the advocate and client before allowing discovery.

 

Any search must occur in their presence, with protection to the confidentiality of other clients, it added.

 

The court also clarified that in-house counsel are not entitled to privilege under Section 132, though limited protection applies under Section 134 regarding communications made in their advisory capacity.

 

The proceedings followed controversy over the Enforcement Directorate’s summons to senior advocates Arvind Datar and Pratap Venugopal, later withdrawn after protests by Bar associations.