The Supreme Court on Monday said that it was shocked to read about the summons issued by the Enforcement Directorate to Senior Advocates Arvind Datar and Pratap Venugopal for the legal opinions rendered by the two lawyers in a case.
A Bench of Chief Justice of India BR Gavai and Justice K Vinod Chandran asked how lawyers can be summoned for communications with their client which is privileged and protected from disclosure.
"How can lawyers be summoned like this? This is privileged communication," the Bench asked.
CJI Gavai further said that he had read about the news on online legal portals Bar and Bench and Livelaw and was shocked.
"I read Livelaw and Bar & Bench. We were shocked," the CJI stated.
The Bench then said it was contemplating issuance of guidelines on the issue.
The Court was hearing suo motu case initiated by it after the news about summons came to be reported in the media.
Summons was issued to Senior Advocates Arvind Datar and Pratap Venugopal in the course of the ED’s investigation into the grant of over 22.7 million Employee Stock Option Plans (ESOPs), valued at more than ₹250 crore, by Care Health Insurance to former Religare Enterprises chairperson Rashmi Saluja.
Datar had provided a legal opinion supporting the ESOP issuance, while Venugopal was the Advocate-on-Record.
The ED later withdrew summons to both Datar and Venugopal following widespread criticism from bar associations across the country.
In response to the backlash, the ED also issued a circular directing all field officers not to issue summons to advocates in violation of Section 132. The central agency clarified that any summons under the statutory exceptions must now be approved by the Director of the ED.
However, the Supreme Court decided to examine the issue suo motu.
When the case came to be heard today, Supreme Court Bar Association President Vikas Singh cited the instance of crackdown on bar by the executive.
"In Turkey entire bar association was disbanded. We cannot go that way," he said.
Attorney General (AG) R Venkataramani said that he had immediately told the ED that what they did was wrong.
"I told ED that what you have done is wrong," he said.
Solicitor General (SG) Tushar Mehta also supported the AG's views and said that lawyers cannot be summoned for their professional advice.
"Lawyers cannot be summoned for giving opinions," the SG submitted.
However, the SG also pointed out that there is a concentrated effort to create narratives against the institution.
"General observations at times are misconstrued considering individual cases. There is a concentrated effort to create an effort against the institution," the SG said.
However, the Bench said that it was seeing multiple instances of ED pursuing political matters and
"We are seeing it multiple times. I have been travelling. There were also two matters (today) where I said do not politicise," the CJI said.
He was referring to the comments made by him in petitions against West Bengal Chief Minister Mamata Banerjee and Karnataka Chief Minisiter Siddaramaiah's wife Parvathi.
"But if I am a politician in 3000 crore scam, narrative cannot be built by interviews etc," the SG said.
However, the Court said that the Court will have to lay down some guidelines.
"We are seeing in multiple cases that even after reasoned orders of HC, ED is continuously filing appeals! We don't have time to watch YouTube etc. we have to now lay down the guideline etc," the CJI said.
"Yes guideline also if one can build narratives outside the court," the SG said.
The Bench then asked the SG to point out instances when the Court was influenced by narratives outside the Court.
"You cannot say that we will be influenced by such narratives," Justice Chandran said.
"Tell us in which judgment were we influenced by narratives," CJI Gavai also asked.
"The Court does not comprise of only these two judges. Milord. But I say lawyers can never be summoned for giving opinions," the SG fairly conceded.
Supreme Court Advocates-on-Record Association President Vipin Nair thanks the Court for taking up the matter.
"We are grateful that SCAORA representation has been taken into account. The concerned lawyer was in Spain when this happened and could not even sleep," Nair said.
"I make a statement. Once we came to know about Mr Datar, highest executive took it up. Circular was issued to ED within 6 hours," the SG highlighted.
He also pointed out an instance of a lawyer helping a murder accused
"In Ahmedabad, after commuting a murder the murderer contacts the lawyer and lawyer guided - 'take the body etc there'," the SG stated.
However, the Bench said that a judgment of the apex court rendered by Justice KV Viswanathan covers the exceptions where lawyers can be moved against.
"That is covered under exceptions," Vikas Singh stated.
"Yea there is an order by Justice Viswanathan also," CJI Gavai weighed in.
The Court eventually listed the matter for further consideration on July 29.
It also said that it will appoint an amicus curiae.
"We will list this on July 29, Tuesday. File a comprehensive note and then we will appoint an amicus," the Court said.
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