Peer review of summons issued to lawyers unworkable; Supreme Court issued adequate guidelines: Arvind Datar

When the Supreme Court took suo motu notice of the Enforcement Directorate (ED) summons to senior lawyers earlier this year, it confronted a test of limits. How far can agencies go before they breach the independence of the Bar?

For Senior Advocate Arvind Datar, who himself faced such summons, the answer came with clarity. The Court, he says, chose the right solution by rejecting a peer review mechanism and tightening safeguards within existing law.

In this conversation with Bar & Bench's Debayan Roy, Datar praises the Court for opting for a simpler and enforceable remedy through senior-level approval before any summons and automatic judicial review.

He also discusses the contours of client privilege, the vulnerability of in-house counsel and why the judgment puts in place adequate safeguards.

Edited excerpts follow.

Debayan Roy [DR]: The Court in its judgment has called out the probe agencies for having violated certain statutory mandates either by abject ignorance or deliberate design. Was the Court right in not choosing to lay down formal guidelines to be followed while summoning advocates?

Senior Advocate Arvind Datar (AD): They have declined to lay down guidelines as in the case of Jacob Matthew or Visakha. But I think in the last paragraph, the Supreme Court has issued directions. You may call them guidelines or directions; it is a matter of words. They have included safeguards that are not strictly in the Act. To that extent, I would say that the Court has issued directions/guidelines.

DR: What are your views on the extraneous means being used by investigating agencies to stretch trials, whether by filing supplementary charge sheets over the years or introducing additional witnesses and evidence at the eleventh hour?

AD: There is no better truism than “process is the punishment.” In the meanwhile, a man is in jail and it is virtually impossible to get bail. We have seen in many high-profile cases that people are arrested and after six or seven years, they are acquitted. Who is to compensate for the lost time, name and prestige?

There is a serious problem there. I am not a criminal lawyer, so I can't speak with that much authority on the subject. But from what I have seen in the PMLA, the definitions of "money laundering" and "proceeds of crime" are so wide that sometimes cases have nothing to do with crime or proceeds of crime, yet you come within the purview of PMLA. A simple cheating case under Section 420 can trigger PMLA. Matters under the Trademark Act or Copyright Act are also made predicate offences.

Why should that be? Something truly in the nature of money laundering or that is harmful to the nation - that alone should lead to exercise of draconian powers. The powers are very harsh; they can simply attach your assets or put you in jail. I have seen a case where a person over 70-72 was in jail for over a year.

DR: By refusing to create a peer-review mechanism as done in Jacob Matthew, has the Court missed an opportunity to build an institutional safety valve to protect lawyers from this summoning culture?

AD: I personally feel creating a peer-review committee would have been counter-productive. It would have been very difficult. What would be the composition of a peer-review committee? Would there be committees at the state level or the district level? This is very good in theory, but it would have been very difficult to implement in practice.

What the Supreme Court has done, and I think rightly, is they have taken the existing law and added safeguards to particular sections. For instance, Section 94 of the BNSS says you can summon any person. Now, the Court has said you cannot summon an advocate unless you get prior permission, and that summons is also subject to judicial review under Section 482, now Section 528 of the BNSS. They have also mentioned digital evidence and other aspects.

So instead of creating a peer review committee, what is done now is more easily manageable and more efficacious. Of course, these directions have just come; we have to see how they are implemented. If there is some difficulty, you can tweak it, modify it.

DR: The judgment treats lawyer’s privilege as belonging to the client and not the advocate. How does that reshape the idea of professional independence for the Bar?

AD: Actually, there is no privilege for the advocate per se. It is the client's privilege. The advocate is not allowed to disclose his privileged communication with the client. The advocate is protected because the client has got the privilege, that is a fundamental thing. Only when the lawyer participates in the crime or is an accessory, does that protection cease. The proviso and illustrations are important. If you have committed forgery and you engage me and I advise you, that is protected by privilege. But I can't tell you how to commit forgery and participate in it - then I am not protected by privilege.

The law of privilege has been settled for over a hundred years. There are nuances - litigation privilege, non-litigation privilege and so on. What the Court has done is a correct interpretation of the law with additional safeguards.

DR: The Court has said that permission or approval of a Superintendent of Police would be required to send summons to a lawyer. Do you see this as an effective filter or merely a procedural step open to misuse?

AD: I don't know how this Superintendent mechanism will work, but I think it is a right step. The SHO (Station House Officer) or the investigating officer cannot just summon a lawyer arbitrarily. Whatever summons he issues, must first get the Superintendent’s approval. That is a filter.

The Superintendent is not a rubber stamp; he must apply his mind and see whether the summons to the lawyer is in the teeth of Section 132 BNSS. If they apply it in practice, it will work very well.

Further, the Superintendent is not the last man; his satisfaction is subject to judicial review. I think this two-layer system will be a huge protection to lawyers against arbitrary summons being issued by police officers and investigative agencies.

DR: The judgment allows production of documents and devices under court supervision. In today’s era of digital data and overlapping client files, how practical is this safeguard?

AD: That is a real problem. Any lawyer’s laptop or iPad will have large amounts of data which is subject to privacy of various clients. It may involve investigation of client 'X', but data of others will also be subject to the probe. By subjecting it to court approval, maybe you can say, for example, that your laptop contains 'x' number of files, but only 3 files for the purpose of this case. You can tell them to take the 3 files and not touch the remaining ones.

Investigating one client could expose information about others. Now, by subjecting seizure to court approval, one can point out that only specific files relate to the case. Earlier, there was no safeguard; agencies could take the device and download the entire hard disk.

DR: One concern in the legal profession is the exclusion of in-house counsel from Section 130. How do you think corporate counsels will now navigate when dealing with criminal processes?

AD: The judgment makes it clear that Section 132 does not apply to in-house counsel. “In-house counsel” is not defined, but as we understand in general terms, he is the GC or legal advisor for a company or group of companies.

I personally feel that the privilege should have been extended to them also, because clients are still consulting a legal professional. A large group of companies may have in-house counsel due to the sheer volume of work...If the in-house lawyer provides legal advice, that communication should be privileged. Perhaps the Court could have extended that protection to them.

DR: Investigating agencies have previously withdrawn such summons after public outrage. Does this judgment create enough deterrence to prevent such overreach in the future?

AD: I think it certainly does, because of the directions in the last paragraph and the requirement of prior approval of the Superintendent plus automatic judicial review. A summons like the one issued to me cannot be issued now. I don't know how it's going to work out in the case of ED...instead of the Superintendent of Police, it could be the head of department or the Director. And that Director has to apply his mind; there has to be a file note or a record of reasons as to why they have asked a lawyer for some documents or communication.

DR: Does this judgment restore the balance between investigative powers and professional privilege, or does it still leave the Bar vulnerable?

AD: The balance was already maintained by the law. Section 126 of the Evidence Act was there for a hundred years. It was working well, there are hundreds of cases laying down what line you cannot cross.

Unfortunately, in last 5-10 years or so, investigative officers in the course of their investigation began asking lawyers to disclose what clients said, which was a violation of the law. The Court merely put a stop to it. So I wouldn't use the term "balance". The Court has maintained the integrity of Section 132 and the legal process of privilege, and said that if you want to breach it, you need the Superintendent's approval.

In an ideal situation, the investigating officer should know these limits. Since they have gone beyond Section 132, the Supreme Court has now placed a check...This protection is also for the client, whose confidentiality will not be breached because of these safeguards.

DR: Some legal experts have criticised this judgment as a lost opportunity and are of the view that the Bench could have laid down proper, authoritative guidelines. What is your response?

AD: When people say it is a “lost opportunity,” I do not agree. Unless someone specifies which situations were missed, it is not a lost opportunity. There are some concerns about in-house counsel and the difference between a document and a communication. For example, draft documents exchanged between client and lawyer are part of communication. There are 2-3 areas that need to be clarified, but I wouldn't characterise it as a lost opportunity.

The judgment has discussed the law and explained why it is not issuing guidelines. But it has still gone on to issue directions which, in my opinion, are mandatory guidelines.