Should summons to lawyers require magistrate approval? Supreme Court to examine

The Supreme Court on Tuesday said it will hear the Attorney General for India (AG) and the Solicitor General (SG) on August 12 regarding formulation of guidelines to protect lawyers from intrusive summons issued by investigating agencies probing their clients.

A Bench of Chief Justice of India BR Gavai and Justice K Vinod Chandran asked various parties, including the Supreme Court Bar Association (SCBA) and Supreme Court Advocates-on-Record Association (SCAORA) to give their suggestions to the AG and SG.

"We will hear the SG and AG on August 12. List high on board," the Court said.

The Bench was hearing suo motu case initiated by the top court days after Enforcement Directorate (ED) issued summons to Senior Advocates Arvind Datar and Pratap Venugopal in connection with its 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 of BNS. The central agency clarified that any summons under the statutory exceptions must now be approved by the Director of the ED.

However, the Court still decided to examine the issue suo motu on the basis of a representation made by Supreme Court Advocates-on-Record Association (SCAORA).

On July 21, the Court had expressed shock over the issuance of summons to lawyers and said it was contemplating issuance of guidelines on the issue.

Today, Supreme Court Bar Association (SCBA) President Vikas Singh said the guidelines issued by ED to its officers should be adopted by the police as well.

"We are not defending anyone who falls under the exception or the proviso [under Section 132. There should be no protection. But we are here only for the privileged communication... How to protect. If the lawyer feels he can called in routine fashion it will have chilling effect on administration of justice," he added.

Singh further said that wrong-doing lawyers cannot be saved but if no protection is given, lawyers will stop advising persons in highly-sensitive cases.

The SCBA President suggested that in CBI and police, there should be permission from the Superintendent of Police (SP) for issuance of summons to lawyers. However, he further suggested that summons should also be cleared by a judicial magistrate first.

"If magistrate feels that it is admissible evidence, then summons can be issued," Singh said.

However, Solicitor General Tushar Mehta said one incident cannot lead to "unmanageable" guidelines. Nevertheless, he made it clear that lawyers cannot be summoned for giving a legal opinion.

Mehta agreed with Singh on summons being approved by SPs in the police or CBI. However, he opposed the suggestions pertaining to magistrate approval.

"In ED circular, we have quoted the law on the subject. SP level permission for CBI and police is welcome. But for magistrate permission, it would be sending statutory permission and could be challenged for violation of Article 14 since a layer would be created by the court. So I am submitting that have it on next day as AG is submitting and we can take the suggestion into account," he added.

Senior Advocate Mukul Rohatgi made submission for extending the protection to in-house counsel and legal advisors also. Senior Advocate Shoeb Alam referred to freezing of account of law firm Cyril Amarchand Mangaldas.

"The law firm Amarchand Mangaldas had their accounts frozen. Then it was released post an application ..for magistrate .. they should see that there is a prima facie case of fees for legal opinion," he said.

Senior Advocate Amit Desai referred to issuance of search warrants against law firms for production of documents.

"There is a debate on privileged and non privileged documents. There are guidelines in UK, US , Singapore. During probe, this aspect needs to be concerned where privileged documents cannot be handed over to the investigating agencies," he added.

Senior Advocate Atmaram Nadkarni, appearing for SCAORA, submitted that the process of looking into laptops and other devices of lawyers cannot be allowed.

At this, SG Mehta said government will take a call on the suggestions. However, he said stray cases should not lead to changes in law.

"There was a case of a fugitive who left the country... The agency went to collect documents for the probe. The firm involved is the most honest one. The firm should not have been named. Let not one incident lead to statutory changes," Mehta submitted.

Senior counsel Ranjit Kumar and Siddharth Luthra and others also made submissions during the hearing.