Lawyers can't be summoned over advice to clients unless exceptional circumstances exist: Supreme Court

The Supreme Court on Friday held that as a rule, investigating agencies such as the Enforcement Directorate (ED) cannot summon lawyers in connection with advice given by them to clients.

The Bench of Chief Justice of India (CJI) BR Gavai and Justices K Vinod Chandran and NV Anjaria added that lawyers can be summoned only in the exceptional circumstances mentioned under Section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), that too after such a move is cleared by a senior investigation officer.

Section 132 of the BSA generally bars lawyers from disclosing confidential communications with their clients. However, it also provides exceptions where the lawyer may be allowed to disclose such information, such as when there is information exchanged about something illegal, or the lawyer has noticed a crime or fraud.

"We have tried to harmonise the evidence with procedure rules. Investigating officers shall not issue summons to lawyers appearing for the accused. If (summons is issued to lawyers), it shall specify the exceptions under which it is issued (to) the advocate on whom there is obligation of non disclosure is under Section 132...Summons (can be) issued to counsels only if it is covered in any of the exceptions under Section 132 and the exceptions are stated clearly," the Court held today.

The Court added that it is refraining from issuing any guidelines since the law is clear, but proceeded to issue certain directions to ensure that privileged or confidential communications between lawyers and their clients are protected. These directions include:

- Investigating agencies cannot summon lawyers who represent the accused in criminal cases to get information about the case unless the information sought is covered by any of the exceptions laid down in Section 132 of the BSA.

- When a summons is so issued to an advocate under any of the exceptions, it shall specify the facts on which the exception is sought to be relied upon. Such a summons is to be issued by the investigating agency only with the consent of a superior officer not below the rank of a Superintendent of Police, who shall record his satisfaction as to the exception in writing, before the summons is issued

- A summons so issued shall be subject to judicial review at the instance of the advocate or the client under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

- Production of documents in the possession of the advocate or the client will not be covered under the privilege conferred by Section 132, either in a civil case or a criminal case. Rather, in criminal cases, it is governed by Section 94 of the BNSS and Section 165 of the BSA. In civil cases, Section 165 of BSA and Order XVI Rule 7 of the Civil Procedure Code comes into play.

- If digital evidence (for example, mobiles, laptops etc.) is taken from advocates in such matters and produced before a trial court - and if objections about any procedural irregularities are overruled by the court - it can only be opened in the presence of the advocate or the party concerned, who will be enabled due assistance of a person with expertise in digital technology of their choice.

- While examining the digital device, care shall be taken by the Court not to impair the confidentiality with respect to other clients of the advocate.

- In-house counsel will not be entitled to the privilege under Section 132 since they are not Advocates practicing in Courts as spoken of in the BSA.

- In-house counsel, however, would be entitled to the protection under Section 134 insofar as any communication made to the legal advisor of his employer, which however, cannot be claimed for the communications between the employer and the In-house counsel.

The Court delivered the verdict in a suo motu case initiated by it to consider the issue of investigating agencies summoning lawyers who provide legal advice or represent accused persons in criminal cases.

The suo motu case was initiated after media reports emerged regarding summons issued to Senior Advocates Arvind Datar and Pratap Venugopal by the ED.

The summons were issued in connection with 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 in support of the ESOP issuance, while Venugopal was the advocate-on-record in the matter.

The ED subsequently withdrew the summons to both advocates following criticism from bar associations across the country.

During hearings of the suo motu case, Attorney General R Venkataramani informed the top court that he had immediately told the ED that its action in the matter was wrong.

Solicitor General Tushar Mehta had supported the Attorney General’s position and stated that lawyers cannot be summoned for providing professional advice.

However, he also added that general observations made in court are sometimes misconstrued in the context of individual cases and that there was a concerted effort to create narratives against institutions and agencies.

The Bench had earlier noted that it had observed multiple instances of the ED pursuing politically sensitive matters.

The Court today also ruled that a summons issued to a lawyer by the Assistant Commissioner of Police, Ahmedabad was illegal. The Gujarat High Court had earlier refused to quash the summons, which was then challenged before the Supreme Court.

The top court today said it was surprised that the High Court refused to intervene in the matter, terming such a move flawed and erroneous.

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