Why in news?

Recently, the Supreme Court ruled that police and investigating agencies cannot summon advocates to disclose client communications shared during legal advice.

The Court examined whether lawyers acting solely in a professional capacity can be summoned and, if their role extends beyond that, whether such summons should face judicial scrutiny.

What’s in Today’s Article?

• Background: From Gujarat Loan Dispute to Nationwide Concern
• Attorney-Client Communication Under the Bharatiya Sakshya Adhiniyam (BSA), 2023
• Contentions Before the Supreme Court on Summons to Lawyers
• Supreme Court’s Directions on Summoning Lawyers

Background: From Gujarat Loan Dispute to Nationwide Concern

• The case originated from a Special Leave Petition (SLP) in a loan dispute, where an advocate representing an accused in a bail plea was summoned by the investigating officer.
• When the lawyer challenged the summons, the Gujarat High Court upheld it, ruling that the advocate’s non-cooperation had stalled the investigation and finding no violation of fundamental rights, as the officer acted within legal authority.
• The issue escalated nationally after the Enforcement Directorate (ED) issued summons to Supreme Court senior advocates Arvind Datar and Pratap Venugopal.
  • This was issued in a probe related to ESOP allotments by Care Health Insurance Ltd to Rashmi Saluja, former Religare Enterprises chairperson.
• Though the ED later withdrew the summons, the action drew strong condemnation from legal bodies, as the move threatened the independence of the legal profession and the right to fair legal representation.

Attorney-Client Communication Under the Bharatiya Sakshya Adhiniyam (BSA), 2023

• The BSA, 2023, which replaced the Indian Evidence Act, 1872, upholds the confidentiality of communications between advocates and their clients.
• Such communications are privileged and cannot be disclosed to third parties, ensuring clients receive free and fair legal advice.
• Exceptions to Privilege (Section 132)
  • An advocate cannot reveal client communications, even after professional engagement ends, except in three specific cases:
    • Client consent to disclosure.
    • The communication is made for an illegal purpose.
    • The advocate witnesses a crime being committed during the period of employment.
• Scope of Protection
  • The privilege covers oral, written, and electronic communications between lawyer and client.
  • An advocate is also exempt from testifying about such exchanges in court or to investigative agencies.
  • The Supreme Court clarified that this protection exists to safeguard a client’s right to effective legal representation, not to grant immunity to lawyers from legitimate investigation when unlawful acts are involved.

Contentions Before the Supreme Court on Summons to Lawyers

• The Bar associations contended that issuing summons to advocates violates their fundamental rights under Articles 19(1)(g) (right to practise any profession) and 21 (right to life and personal liberty).
• They argued that Section 132 of the BSA, 2023 protects client communications, but lacks a corresponding safeguard for advocates against being coerced into disclosure.
• Such forced revelation, they said, could amount to professional misconduct and undermine client confidentiality.
• Bar’s Proposed Safeguards
  • The Bar suggested a two-tier mechanism to prevent arbitrary summons:
    • Judicial Oversight: Summons to advocates must first receive approval from a magistrate.
    • Peer Review: Thereafter, it should be examined by a committee of lawyers at the district, state, or national level to assess whether the communication falls within the exceptions under Section 132.
  • They also recommended applying the “dominant purpose test” — determining whether the communication’s main intent was seeking legal advice (privileged) or furthering illegal acts (not privileged).

Supreme Court’s Directions on Summoning Lawyers

• The Supreme Court firmly ruled that lawyers cannot be summoned merely to disclose client communications, reaffirming the protection under Section 132 of the BSA 2023.
• Such privilege, the court said, exists to ensure free and fair legal representation, not to shield illegality.
• An advocate may only be summoned if the communication is used to commit or conceal a crime, and such summons must:
  • Specify the facts justifying the exception, and
  • Have written approval from a superior officer (not below the rank of Superintendent of Police).
• Protecting Constitutional and Professional Rights
  • The bench agreed with the Bar’s contention that breaching confidentiality violates Articles 19(1)(g) (right to practise profession) and 21 (right to personal liberty).
  • It also observed that Section 132 aligns with Article 20(3) of the Constitution, which protects against self-incrimination, extending this principle to the lawyer–client relationship.
• No New Guidelines — Existing Safeguards Are Sufficient
  • Rejecting calls for additional judicial oversight, the Court said Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) already allows anyone, including advocates, to challenge summons before a court.
  • The bench held that investigative powers cannot be fettered, as constitutional safeguards already exist to prevent misuse.
• Distinction Between Communication and Evidence
  • The Court clarified that Section 132 protects communications, not physical or digital materials.
  • Under Section 94 of the BNSS, investigators may seek documents or devices believed relevant, but only through the court — not directly.
  • Both lawyer and client must be notified, allowed to raise objections, and any examination must occur under judicial supervision, ensuring that unrelated client data remains sealed and protected.
• Limited Privilege for In-House Counsels
  • The Court held that in-house legal advisers are not covered by full privilege under Section 132 since they are salaried employees and lack professional independence required under the Advocates Act, 1961.
  • They have limited protection — confidentiality applies to client communications received as legal advisers, but not to internal company exchanges or communications driven by business interests.