Supreme Court issues directions to protect communications between lawyer and clients

The Supreme Court on Friday issued directions to ensure that investigating officers do not arbitrarily summon lawyers merely because they represent or give advice to persons accused of crimes [In re summoning advocates who give legal opinion or represent parties during investigation of cases and related issues].

A Bench of Chief Justice of India (CJI) BR Gavai and Justices K Vinod Chandran and NV Anjaria issued the directions so that the confidentiality of such privileged lawyer-client communications is protected

The Court noted that the law is already quite clear in this regard.

Under Section 132 of the Bhartiya Sakshya Adhiniyam, 2023 (BSA), lawyers cannot generally be asked to disclose information about communications exchanged with a client. Therefore, lawyers cannot usually be summoned to compel them to give such information.

However, Section 132 also provides for exceptions, whereby a lawyer can disclose communications with a client if such communications indicate that something illegal or fraudulent is going on, or if the client consents to such communications being shared.

The Court today held that, unless such exceptional scenarios exist, an investigation agency cannot summon lawyers to compel them to disclose their communication with a client.

The Court said it is refraining from issuing detailed guidelines since the law is already quite clear. However, it issued directions to remind investigating officers to follow the law.

Among other directions, the Court also said that even in exceptional circumstances, lawyers cannot be summoned in relation to client communications unless such a move is cleared by a superior investigation officer.

Moreover, if digital devices such as mobile phones, laptops, etc. are seized from summoned lawyers and produced as evidence before a trial court, they can only be opened in the presence of the lawyer and his client, who can engage a technical expert of their choice to assist them.

The directions issued today 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.

- Every such summons must carry prior written approval and satisfaction of a superior officer not below the rank of Superintendent of Police, recording reasons for invoking an exception.

- The summons must clearly state the facts bringing it within a Section 132 exception.

- Such summons will be open to judicial review under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). This means that the lawyer summoned or his client can challenge such summons before a court.

- The privilege under Section 132 extends beyond court proceedings and includes all legal advice sought or given in non-litigious and pre-litigation matters.

-  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 an investigating officer wants to seize digital devices in the possession of a summoned lawyer, it has to be produced before a jurisdictional court. The court has to first issue notice to the affected lawyer/ party who should be given an opportunity to object to whether the digital devices can be produced as evidence. If the objection is overruled, only then can the digital device be opened or examined. Even then, the digital device can only be opened in the presence of the lawyer or other concerned party, who may engage a digital technology expert to assist them.

- 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. Discovery of evidence from such devices shall be confined to what is sought by the Investigating Officer (if it is found to be permissible and admissible).

- 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. Rather, they would be protected under Section 134 of the BSA, which lays down that one shall be compelled to disclose to the court any confidential communication which has taken place between him and his legal adviser. However, this protection would only extend to communication between the in-house counsel (legal adviser) and customers/ clients, not communication between the employer and in-house counsel.

[Read Judgment]