In a landmark ruling on summons issued to advocates by investigating agencies, the Supreme Court chose not to frame binding safeguards to protect lawyers from such action.

Senior Advocate Gopal Sankaranarayanan calls this a missed opportunity, arguing that the Court should have defined the limits of investigative power over the Bar.

Grounding his critique in the Constitution’s protection of liberty, he describes the judgment as one that recognised the malaise, but declined to cure it.

In this interview with Bar & Bench’s Debayan Roy, Sankaranarayanan speaks on the judgment’s silences, the need for peer review before summoning advocates and why the privilege of communication between lawyer and client must remain beyond the reach of the State.

Edited excerpts follow.

Debayan Roy [DR]: The Court in its judgment observed that investigating agencies completely violated statutory mandates either by abject ignorance or deliberate intent. Was it correct in stopping short of laying down formal guidelines?

Senior Advocate Gopal Sankaranarayanan (GS): My view is that the Court should have gone ahead and laid down the guidelines for whatever it was worth. The reason why the Court decided not to do it is that it felt that advocates are not a specific class that can be defined. And if guidelines were laid down for them under Article 142 of the Constitution, it would be a violation of Article 14, because you’re creating a class without a rationale.

My response to that would be that the Evidence Act, both old and new, specifically recognises them as a class for the purpose of privilege in their communications with clients. So I don’t see an Article 14 violation there. This is a very clear class where privileged communication must be protected.

As far as the guidelines that were necessary to be laid down, I feel that there is now a tendency - and I’ve seen this way too often for us to ignore - that investigating agencies of all sorts - not just the ED, police and NIA, but even institutions like the income tax, revenue authorities and customs - to have power go to their heads. They become high-handed, they become bullies, they become downright obnoxious and they feel vested with some kind of overwhelming right which normal citizens are not permitted to enjoy simply because you suspect those citizens of certain offences.

The advocate, in this scenario, is one step removed. He or she is helping the wheels of justice move by ensuring that the information shared by the accused client is going to be provided a protection that cannot be used against them. It goes back to Article 21, Article 20 and the self-incrimination rights of the client. It’s one of the core aspects of the justice system for the last 700-800 years. So the idea that the Court would suddenly shy away from laying down guidelines which would have sent a strong message to rogue individuals in these agencies who act in a high-handed fashion, is something which causes me some disquiet. I believe that the opportunity was there, and it was lost.

DR: We see an increasing trend across investigating agencies, not only the ED, to delay trial - whether by filing supplementary charge sheets, issuing repeated summons or adding additional witnesses at the fag end. Do these tendencies ensure that the process itself becomes the punishment?

GS: I feel that we need to have our courts be a little more strict. Just today, one of my associates complained to me that in an issue regarding attachment of property under money laundering, the tribunal has adjourned the matter three times. When he objected, the tribunal had the gall to tell him, “We haven’t given the ED a last opportunity yet, so don’t insist.”

Why are you not ensuring that the ED and other investigating agencies are not put to strict terms? Because you’re dealing with the core of Article 21, with the liberty and property of individuals who are suspected to have committed crimes. If they wish to behave like agencies representing the Republic, they must adhere to the basic values of the Constitution and try and ensure that they are accountable to responding quickly.

I feel that our magistrates, trial judges and tribunals are perhaps not being strict enough. If you make investigators accountable, if you impose costs on them, summon senior officers like a deputy director or SP, that will put them under pressure. They need to be put under pressure, because they put everyone else under pressure when they are prosecuting. The deplorable record that the ED has with its prosecutions being unsuccessful itself is proof of the fact that they are either inept, misdirected or plain malicious. On all three counts, they need to be held responsible.

DR: We see how the High Courts or the Supreme Court often show spine - like what happened in the stray dogs matter, where all the Chief Secretaries were summoned. But in trial courts, do you think there is a sense that the executive has an upper hand? In tribunals, is there a tendency to toe the line?

GS: In tribunals, perhaps - because the manner in which recruitment happens is not ideal. There may be individuals in those tribunals who are not entirely independent and still genuflect to the executive.

But in the trial courts, to a large degree, I’ve seen many young judges who are very good and very independent. I think there is a culture that has set in, that allows things to move slowly. I would be in error if I only blamed the judges - you have to blame the lawyers as well, because they benefit from adjournments, from taking fees for appearance and from dragging matters out. But whether it is the judge or the lawyer to blame, I don't think any client benefits from cases being dragged out...It’s a bounden duty of serving justice to make proceedings time-bound and if filings are not done, pleadings are not complete and arguments are not ready, consequences must follow - especially for the government and investigating authorities, who have entire cricket teams of lawyers. They can’t say, “The ASG is in another court,” or “The senior is not available.” Private parties may say that, the government should never say that.

DR: Coming back to the summons judgment, the Court declined to set up any sort of peer review or oversight committee, like the one in Jacob Mathew. Do you think the legal profession needs an institutional safety valve to protect lawyers?

GS: A while ago, we didn't have such instances of summons being issued to respected lawyers like Mr Datar or my friend Pratap Venugopal. It is just shocking, the ignorance of the ED officers who though it was okay. But we’ve reached a stage where such things happen, so we need some level of peer-reviewed protection.

In the judgment, the Court points out that the Bar and the Bench are the two wheels on which justice moves. For the Bench, in the Veeraswamy case, the Supreme Court held that when cognizance is to be taken against a judge, there will be a safety valve - the Chief Justice decides whether sanction should be granted. Why doesn’t the other wheel get that kind of protection?...And we are talking about this limited area where there is a question of privileged communications. When you want to summon a lawyer for that, clearly there should have been some sort of peer-reviewed safeguard. Maybe a committee of the Attorney General, Bar President and a nominated senior lawyer...to decide whether a case falls within Section 132 exceptions.

Strangely, the judgment lost sight of the fact that such peer review could have gone some way in protecting advocates and clients when privileged communication is involved. It’s not about protecting advocates everywhere...it's actually about protecting the client...

DR: So you think the judgment missed an opportunity?

GS: If the Court had simply quashed the SLP, it might have had the same value as this long judgment. But if you frame two questions - first, saying you cannot go beyond Section 132, and then the second question is whether guidelines should be laid down, and you say they shouldn't, then why go into this? This is anyway what the law says...It didn't need this kind of application unless you are laying down guidelines. It could have helped by laying down guidelines and specifically noting the peer review measures that should be in place; you could have had a safety valve.

Most importantly, it is only the judiciary that can speak truth to the power that the executive wields. Our investigative agencies needed a strong message to be sent out to them. The Court should have summoned the ED officer who sent those notices...the fact that you sent the summons is the problem. The subsequent withdrawal because of public outrage doesn't matter...we must understand what the malaise is in the system that permitted this to take place. When you are sending notices like that to lawyers of such stature, you are doing it with approval of someone higher up the chain...If the Court called for the files, it would have found out who was responsible. For the ED then to say that it will set up a system where the Director's approval is required (before issuing summons to lawyers), I don't think it's a safeguard.

DR: The Court has said that privilege belongs to the client, not the advocate. How does that position sit with the advocate’s own duty of independence and confidentiality to the court and the client alike?

GS: Since the privilege is attached to the communications and data shared by the client with the advocate, the Court is not wrong in coming to that conclusion. But if you contrast Section 132 with the preceding Section 131, Section 131 is a prohibition dealing with what you could share, while Section 132 says an advocate may not be permitted to share such information. This means that even if the advocate wanted to share such information - which he should not because it would be misconduct under Bar Council rules - there is a bar under the Section, thereby protecting the client.

Separate from that, an advocate acts as an officer of the court. While doing so, he must ensure fairness to the system. This squarely applies to prosecutors as well, and that is a gaping hole in our country. It is exceptional to see fair prosecutors.

They don't have the training; their job is not to send an accused to jail. Their job is to examine the material, see whether a case is made out and argue accordingly. This is why we have so many battles for bail in this country. Every single case, bail is opposed. Prosecutors are not supposed to oppose bail in every case. Their role is to oppose only in exceptional situations where there is evidence that the accused may be a threat or abscond. But in every other case, we seeing bail being opposed by the State...

DR: But as a prosecutor, can you really take these independent decisions?

GS: You are obliged to do that. When you are not doing it, it is misconduct. Prosecutors are misconducting themselves on a daily basis. It is a rare prosecutor that says "I leave it to the court." I'm glad to see some our ASGs in the Supreme Court nowadays regularly fairly saying it. I'm glad that the government has people like that who can be fair...he is not a convict yet, so the presumption of innocence is still in his favour. Unless there is material to show that he will tamper with evidence, influence witnesses, or run away, the prosecutor should simply say, "I leave it to the court to decide."

DR: The Court has now also required written approval from the Superintendent of Police before such summons are issued. Will that actually deter misuse, or does it risk becoming just another rubber-stamp procedure?

GS: I would hope it is not a rubber-stamp procedure. But I feel that what the Court has done by this is to give a seal of approval to the ED’s band-aid solution. When the ED withdrew the summons against the two senior advocates, it said that only if the Director approves will we go ahead. That is exactly what has been adopted now. The same has been applied to the police, by saying that if the Superintendent approves, they will go ahead.

In my view, either the Court should have said, "There is no such provision in the Evidence Act referring to superior officers," and stayed completely hands off, or it should have provided a proper safeguard. Asking an investigating agency’s own superior officer for approval is not the solution when you're dealing with a situation where an accused's information is being sought.

When the accused’s information is being sought, what weight does a Superintendent of Police’s approval really carry? In the CBI, there are guidelines in the manual where the decision goes up the chain of command depending on the issue. Those safeguards on paper are good if implemented properly.

DR: When the ED wants to issue summons, what power does the Superintendent of Police have to give approval?

GS: It will be the equivalent of the SP in the CBI or ED...The CBI Manual has a clear guideline where it goes all the way up to the Deputy Director. The safeguards they have on paper are good enough, provided they are implemented properly. But the CBI Manual or the ED's working manual are not public documents. People do not know what they can hold these agencies accountable to. It is the best thing for an agency like the CBI, which is accused of being partisan under any regime, to put their manuals online and disclose the safeguards to accused. None of them will put this up. Even the income tax authorities is hiding stuff from you when they come for raids - they will not tell you what your rights are or record a single thing. So you are left high and dry not knowing the rights available to you.

So I have a trust deficit with the way these agencies function. There are individuals within these agencies who are exemplary; I have met them during the 2G case when I assisted Mr. Venugopal...But it is very rare for human beings, when they are given power, not to let it go to their heads. It takes a rare person to understand the kind of power he has and to use it sparingly, only when necessary...Your job is to use legal procedures. The accused may be complete crooks, but your job is not to become like them.

DR: The Court has allowed production of documents and digital devices under judicial supervision. Given today’s data volumes and mixed client records, how practical is that safeguard?

GS: If it is possible to segregate the data and share it, then it is practical. But it depends on how lawyers maintain their records. Usually, records pertaining to one client are kept separately. Only billing or administrative data may be common.

If the data has been shared with you by a client for a specific case, then there is no business of sharing that data or documentation, even under judicial supervision. The judiciary has no role at that stage. The step of judicial supervision comes only after the Superintendent of Police’s approval, and that applies only under the exceptions in Section 132. Even then, it is subject to challenge.

In the ordinary scenario where the lawyer is not guilty of any misconduct, and has only received and stored information, there is no question of producing it. Once there is a bar in law, there is a bar in law. The judiciary cannot step in and say, “You have to give it.” Judiciary cannot investigate. Their role begins at the adjudication stage. If they start directing production of documents, they are prejudging the direction of the investigation.

DR: In-house counsel have been excluded from Section 132 protection. What consequences do you see for corporate lawyers or compliance officers navigating criminal procedures?

GS: When you are an in-house counsel, for the purposes of the Advocates Act, you cease to be treated as an advocate because your license is suspended for the period that you are an employee of the company. You advise from within, as part of the client itself. In such a scenario, one point that could have been raised by the in-house counsel is that the old Evidence Act used the words “pleader,” “lawyer,” “attorney,” etc, while the new Act uses only “advocate.” Advocate is a defined term, and that is what the judgment relies on. This can't include a lawyer who ceases to be an advocate because he is part of the company. Maybe they could have challenged the provision for being too narrow, but that was not the subject matter in this case. In that view, I don't think the Court is in error.

An in-house counsel knows he is part of the client. He cannot stand outside it and say 'I am an advocate giving advice to the client'.

DR: The Enforcement Directorate eventually withdrew the summons after public outrage. Do you believe this judgment will act as a genuine deterrent against such overreach in the future?

GS: I would like to say it could be a deterrent, but my personal experience over the last week suggests otherwise. One of India’s senior-most corporate lawyers - the daughter-in-law of an independent director of a company under investigation - was subjected to shocking treatment. Her father-in-law, who is not even a promoter, came to Delhi for a holiday and stayed with his daughter-in-law and son. The Income Tax Department came from Uttar Pradesh, where the company is being investigated, to her residence in Delhi, sealed the premises and conducted a raid when there is no proper cause. They kept the family, including children and foreign relatives, confined for four days, threatening them with lookout circulars if they did not cooperate.

In such a scenario, to say that the Supreme Court’s judgment acts as a deterrent, I have evidence to the contrary.

When you are dealing with minions in agencies like the Income Tax Department, who think they are a power unto themselves, then you know you are dealing with bullies. You have to find legal ways to deal with this kind of scenario. So I have misgivings about the deterrent effect of this judgment. I hope the agencies take it in the right spirit and we won't see this repeated, but this concerns me.

DR: The Court emphasised that breaches of privilege impede Article 20(3) and the right to effective representation. How far do you see this reasoning influencing larger criminal procedure jurisprudence on compelled disclosure?

GS: It is linked, because Article 20(3) deals with the accused’s right against self-incrimination. This is allied to it, because it concerns the accused’s information in the hands of the advocate.

Since the law dealing with it contains exceptions, those exceptions must be read strictly. The exceptions are not unreasonable - they have held the field for almost a hundred years...But it is important to recognise that the right against self-incrimination is absolute....After the judgment in Puttaswamy, privacy has been recognised as a fundamental right. Informational privacy and data privacy is now a fundamental underpinning. So my data on my phone or iPad is very integral to me as part of my identity.

If, during a raid, my phone or iPad is taken, that's okay. But if you replicate that information and put it on foreign laptops that are not mine, you are jeopardising my security and identity...It's possible to duplicate, so there is a possibility for all of that data to be either wiped out or replicated.

These are nuanced questions that have to be dealt with in the time to come. Perhaps the upcoming AI and data protection laws will address it in some way.

DR: Looking ahead, do you think this judgment truly balances investigative power with professional privilege, or does it expose the legal profession to more coercive summons in the future?

GS: I think it does go some way in sending a message to investigative agencies that when they take such steps, the Supreme Court is taking this seriously and stepped in right away. The Bar Council, bar associations, individual lawyers, the Attorney General and the Solicitor General came together to say, "We can’t have this." The minute you weaken the system of advocacy for the accused, you weaken the justice system itself.

It sends a strong message that you cannot trifle with advocates by issuing such summons...But whether individuals within the system are trained enough to understand how important it is for them to ingrain within themselves the spirit of Articles 20 and 21, only time will tell.

DR: Do you think the case has ended here, or will it go on?

GS: Looking at the judgment, I think it has ended here. But going by past experience - one of those that stands out is Section 66A of the IT Act, which was struck down in Shreya Singhal. The law ceased to exist, yet police across the country kept registering cases under it. That worries me - either they are illiterate or they haven't been properly informed - and these are the people who should have been informed at the outset that the Section doesn't exist, and the courts don't interfere.

So it worries me that all along the ladder, we have the same thing playing itself out and it frustrates one as a citizen and as an advocate. What more are we supposed to do? I'm hoping that this thing won't repeat itself, but as a student of history, my training tells me that it's going to happen again.

DR: Will you adopt any different practice now while dealing with clients? Do you still give written opinions after this case?

GS: I am changing nothing. Our duty is to both the court and the client, and therefore to the justice system itself. Our job is to take what clients and instructing advocates tell us and to present the best possible case without misleading the court or hiding facts. That is our duty and obligation.

This is the training I received from my mentor, Mr. Venugopal. Whenever there was a weak case, he would tell the court, "This is the case against me, but I believe the correct route is this."

Rather than suppressing or hiding things, because it affects the justice system. We survive because of it; we weaken the justice system at our own peril.