When lawyering becomes criminal: The Supreme Court's chance to protect the defenders of rule of law

When the Enforcement Directorate (ED), India’s anti-money laundering agency, sent notices to Senior Advocates Arvind Datar and Pratap Venugopal - two of the country’s most respected legal voices - it triggered more than professional discomfort; it set off constitutional alarms. These weren't merely summons. They were a signal.

What did the lawyers do to come under the ED's scanner? Simply doing what lawyers do.

Datar had provided a legal opinion in an Employee Stock Option Plan (ESOP) worth ₹250 crore. Venugopal had represented the same client as the advocate-on-record. Both were linked to a transaction involving former Religare Enterprises chairperson Rashmi Saluja.

Under mounting pressure and rare unanimity among the legal fraternity, the ED withdrew the summons. An internal advisory followed, urging restraint on the part of ED officers and mandating high-level clearance before summoning any lawyer. But the implications of the episode couldn’t be rolled back.

That moment dug up something deeper and sparked a quiet erosion of trust in the sanctity of legal defence.

Now, the Supreme Court has stepped in. It has registered a suo motu case titled In Re: Summoning Advocates who give Legal Opinion or Represent Parties During Investigation of Cases and Related Issues, which will be heard by a bench led by Chief Justice of India (CJI) BR Gavai.

The question isn’t whether a line was crossed. The question is whether the judiciary will reestablish where that line must remain, and ensure that it doesn’t move again.

There is a familiar pattern in both democratic and authoritarian regimes. First, the State undermines dissent. Then, it narrows the space for legal defence. Eventually, lawyers become fair game.

United States: When institutions resisted themselves

In United States v. Chen (1996), the Ninth Circuit Court of Appeals affirmed that legal opinions, even those that anticipate legal risks, are protected under attorney work-product doctrine. The McDade Amendment later made it mandatory for federal prosecutors to comply with state ethics rules. Even in high-stakes prosecutions such as the controversial case against civil rights lawyer Lynne Stewart, the system found ways to recalibrate. Lawyers were not seen as extensions of client guilt, but as necessary components of justice.

Turkey: Where defence was criminalised

Since 2016, more than 1,500 lawyers in Turkey have been prosecuted, many for defending political dissidents. Entire bar associations have been disbanded. UN rapporteurs have condemned the chilling effect on basic rights. When a defence becomes equated with subversion, legal systems don’t bend, they collapse.

China: The courtroom as theatre, the lawyer as a threat

The “709 crackdown” in China was a full-blown assault on the legal profession. Hundreds of human rights lawyers were detained, tried and disappeared. Representation was reframed as rebellion. Entire families were surveilled. The legal process was gutted of its defenders.

France: Drawing the line around privilege

In Michaud v. France (2012), the European Court of Human Rights ruled that forcing lawyers to report suspicious client activity breached the core of Article 8 privacy rights. France took a clear stance - attorney-client privilege isn’t a perk of lawyers, it’s the shield of citizens.

These examples aren’t just warnings. They are precedents of how easily systems drift when no firm lines are drawn.

Indian jurisprudence has long acknowledged the importance of safeguarding the legal profession. But its enforcement has wavered.

In RK Anand v. Registrar, Delhi High Court (2009), the Supreme Court underscored that undermining lawyers jeopardises public faith in the justice system itself.

Two years later, in KT Plantation v. State of Karnataka (2011), it emphasised that legal certainty rests on a Bar that is free and unpressurised.

More recent judicial interventions sharpened this line. In Ashwinkumar Govindbhai Prajapati v. State of Gujarat (2025), the apex court led by Justice KV Viswanathan stayed police summons to a defence lawyer, noting that penalising legal assistance “collapses the adversarial system in spirit and in structure.”

High Courts have weighed in too. The Bombay High Court, in AV Pavithran v. CBI (2024), observed that summoning an advocate for offering a legal opinion amounts to a “direct threat to constitutional guarantees.”

The Madhya Pradesh High Court in Praram Infra v. State of MP (2025) quashed summons issued to Advocate Rahul Maheshwari, emphasising that an advocate who is neither an accused nor a witness should not be summoned. 

The Jharkhand High Court in Nishikant Dubey v. State of Jharkhand (2023) described attorney-client confidentiality as “the quiet thread that holds liberty together.”

The law, then, has spoken. The problem is that enforcement drifts, and institutional memory fades fast.

In courtrooms, in office chambers and in informal consultations, a new hesitation has begun to surface. Not loud, but unmistakable. Behind the legalese and the procedural restraint, there’s a growing worry that doing one’s job as a lawyer could one day demand an explanation, or worse, a defence.

Bar & Bench has independently learnt that Senior Advocate Sidharth Luthra was served summons by the ED in March 2022. The notice pertained to a matter he had appeared in more than a decade earlier, a case from 2011. At the heart of the request were details of his legal fees and the corresponding statement of accounts and memos.

When contacted, Luthra confirmed the development.

“The money came, I declared it, I paid tax on it?”

The documents he submitted included downloaded copies of court orders, corresponding memos and account statements. “These were not privileged communications,” said Luthra

But the senior lawyer is clear that the real issue extends beyond any single instance. What concerns him is the slow unraveling of professional privilege through procedural shortcuts. Referencing the Supreme Court's 2012 judgment in the SEBI-Sahara case, he said,

“There are three distinct forms of privilege. And the moment search, seizure or summons are used to puncture those layers without establishing complicity, the entire idea of professional confidentiality begins to crack. Courts must now define where privilege begins and, more importantly, where it must never end. Especially in an age where privacy has already been recognised as a fundamental right."

According to former Attorney General of India and Senior Advocate Mukul Rohatgi, the ED's recent summons to lawyers amounted to "muzzling of a judicial voice.”

“The ED has no role to play in legal advice. Advice may be right, advice may be wrong. But how can that justify a summons? This is a complete entry into the judicial domain."

And what should the response be? Rohatgi is unequivocal:

“There should be a specific statutory provision to protect the Bar. Otherwise, there will not be free and fair judgment.”

Senior Advocate Siddhartha Dave says that as a matter of abundant caution, he does not give written legal opinions in criminal cases.

“As a matter of policy, I don’t give written legal opinions in criminal matters. You never know where the client is going to use it, and what the investigating agency might do.”

Yet, Dave is clear about a lawyer’s role.

“We aren’t lily-white. Some lawyers identify too much with their clients and cross boundaries,” he admits.

But that distinction between advice and abetment must not be lost, he added.

“If someone tells me they committed a crime and I advise them to apply for bail, that is protected. If I tell them how to dispose of the evidence, that’s abetment. We know the difference," says Dave.

His analogy is striking.

“If a doctor says you have malaria, and it turns out you had typhoid, will you prosecute him for misdiagnosis?" he asks.

Senior Advocate Siddharth Agarwal points to a systemic failure.

“Our legal culture has never truly internalised the idea of attorney-client privilege. Investigative agencies neither understand it nor respect it. That is the root problem. When power concentrates without oversight, excesses follow. What we saw with the Datar-Venugopal summons is just a symptom of a deeper malaise.”

What he expects from the Supreme Court is clear.

“Define the space. Let lawyers know what the framework is. And let agencies know where the lines lie. Because without fearless lawyers, you don’t just lose defence, you lose the system."

Senior Advocate Amit Desai brought a quiet but pressing concern into the conversation. He hasn’t been summoned himself, but he has advised others who were.

“This is an issue which has concerned the legal profession for quite some time. It’s imperative that lawyers are fully protected so clients can speak freely and frankly," he said.

He added,

"Legal privilege is not a lawyer’s shield. It is a safeguard for the citizen. If trust between lawyer and client begins to break, the foundation of criminal defence itself begins to falter."

Desai believes there must be a more considered approach. If agencies require documents from lawyers, the first step should be a letter of request, not coercion. And if a dispute arises over privilege, it should be a court, not the investigating officer, that decides.

“You need a mechanism that preserves public trust,” he said.

For Desai, the issue is not about protecting the profession. It is about preserving the integrity of the legal process.

Then there is the case of Mehmood Pracha. A criminal lawyer who took on several politically sensitive matters, including defending accused persons in the 2020 Delhi Riots cases.

Pracha faced two raids by the Delhi Police in quick succession. Investigators cited a forgery probe, but the broader message was hard to ignore.

His office was searched, files were scrutinised and digital records seized - all under the shadow of a professional act being recast as a suspect one. For many in the legal fraternity, this crossed a line. Over a thousand lawyers condemned the raids as a direct assault on the independence of the legal profession.

One cannot also lose sight of the case of Anik Kadri, a Gujarat-based lawyer who was served a police notice simply for filing an anticipatory bail plea for a client. The notice came under Section 41A of the Code of Criminal Procedure (CrPC), a provision meant to prevent arbitrary arrest, not to chill the right to legal representation. Kadri had appeared for former Additional Solicitor General IH Syed.

That appearance alone triggered suspicion. The legal fraternity responded with rare solidarity. The Gujarat High Court Advocates’ Association passed a resolution in Kadri’s defence. Over 300 lawyers stood by him, prepared to accompany him to the police station in protest. He eventually challenged the notice before the Gujarat High Court.

The episode left a bad taste. If standing beside a client in court becomes a reason to be called in for questioning, then the foundations of the adversarial system are no longer steady.

What emerges from these accounts is a deeper systemic illness. The growing willingness of investigative bodies to drag lawyers into the frame of suspicion has shifted the ground under the legal system’s feet. This is not merely about Datar or Venugopal, or even Pracha and Kadri.

It is about whether the lawyer remains a buffer between the citizen and the State, or becomes the next collateral in the battle for control. When that buffer weakens, the courtroom stops being a space of defence; it becomes a place of fear.

This isn’t just a moment of judicial reflection; it’s a chance for constitutional reinforcement. The Supreme Court must start by saying what should have been obvious. Legal advice, even if flawed, cannot be grounds for criminal suspicion unless there is active participation of the lawyer in the alleged crime. Without this insulation, the adversarial system becomes adversarial to itself.

Second, it should institutionalise checks. Every investigative agency must form an internal legal scrutiny cell, a panel of senior legal officers tasked with assessing whether a lawyer’s involvement warrants intervention. Their assessment must be documented and subject to judicial review. It is not just a filter; it is a firewall.

Third, India needs a judicially sanctioned doctrine on attorney-client privilege. Codified. Non-negotiable. Drawn from global templates like the European Convention on Human Rights (ECHR) or the American Bar Association’s model rules.

Finally, the Court must remind the State of something we seem to forget too easily: lawyers are not accessories to power; they are counterweights to it. When a legal opinion becomes the subject of a criminal case, the loss isn’t just professional; it is constitutional.