Balance evidentiary privilege with procedural needs: What SC held on summons to advocates

The court was deciding on two specific questions: whether a lawyer who is involved in a case only in their professional capacity can be summoned by an investigating agency, and if their role extends beyond their professional duties, can such a summons be subjected to judicial oversight.

The bench held that privilege under the BSA must be respected as such a protection exists “not to shield deviants,” but to ensure that “those involved in the task of administration of justice are not victimised or bullied” into revealing client information merely because they represented someone facing criminal allegations.

The background of the case

The case pertains to a Special Leave Petition (SLP) in a loan dispute where the advocate representing the accused in a bail application was summoned by the investigating officer. When the advocate challenged the summons, the High Court of Gujarat upheld it, stating that the lawyer’s “non-cooperation resulted in the investigation being stalled.” The HC found no violation of Fundamental rights, stating that the officer had acted within their statutory powers.

The issue later gained national momentum when the Enforcement Directorate issued summons to two senior advocates of the Supreme Court, Arvind Datar and Pratap Venugopal, which the Bar Associations had widely condemned. The lawyers were summoned in connection with the agency’s probe into the allotment of Employee Stock Option Plans (ESOPs) by Care Health Insurance Ltd to Rashmi Saluja, former chairperson of Religare Enterprises.

While the agency had withdrawn the summons, the move drew condemnation from the Supreme Court Bar Association (SCBA), the Supreme Court Advocates on Record Association (SCORA) and other associations, which said it undermined the right to legal representation.

Is attorney-client communication privileged?

Under the Bharatiya Sakshya Adhiniyam (BSA), 2023, which replaced the Indian Evidence Act, 1872, communications between legal advisers and their clients are privileged, meaning they cannot be disclosed to a third party.

Section 132 of the BSA states that an advocate is not allowed to disclose any communication, even after employment has ceased, except in three circumstances: if the client consents to it; the communication pertains to illegal purposes; and the advocate observes criminal activity being carried out during the employment.

A lawyer is also exempted from testifying or revealing conversations with their client, whether made in oral, written, or electronic form.

This privilege, the court clarified, is meant to protect the client’s right to effective representation and not to provide immunity to lawyers from lawful investigation.

The contention of the parties

The Bar argued that the summons to lawyers violated their right to practise under Articles 19(1)(g) and 21 of the Constitution. They argued that Section 132 of the BSA “is a protection afforded to the client, seeking legal assistance, and there is no corresponding statutory scheme protecting the Advocate from being coerced into a disclosure.” Such forced disclosure, the bar contended, could amount to professional misconduct.

It proposed a two-pronged mechanism to protect advocates from unnecessary summons. First, the summons would need approval from the magistrate, ensuring proper judicial oversight. Then, it would go before the committee of legal peers at the district, state and national legal for further scrutiny. Both examine whether the summons falls within the exception to Section 132. They also suggested the “dominant purpose test” to determine if the communications in question are privileged or not.

The State took a neutral position, arguing that the matter was already governed by the BSA. While they agreed that lawyers cannot be summoned merely for giving legal advice, they emphasised that privilege does not protect those participating in illegal acts. Article 14 prohibits the State from treating equals unequally, unless there is a reasonable basis for doing so. This is known as reasonable classification.

The State argued that the Bar’s proposal violated this principle by creating an unjustified distinction between the advocates and other citizens. For a classification to pass muster, it must be based on a real difference that’s relevant to the law’s purpose. The State argued that when an advocate is suspected of criminal involvement or when being summoned outside the scope of privileged communication, they should be treated like any other citizen subject to the provisions under BNSS. Introducing a special procedure for advocates through committees would amount to creating “an artificial and unjustifiable classification, violating the mandate of Article 14.”

The court’s directions

While attempting to strike a balance between evidentiary privilege and the needs of investigation, without introducing a new layer of judicial scrutiny for every summons, the court answered with “an empathic ‘NO’” and said that the priviledge under Section 132 of the BSA, which protects advocates from disclosing any communication, must be respected, and that a lawyer cannot be summoned merely to reveal what a client had shared, except in limited situations such as when the advice was used to commit an illegal act or conceal a crime. The court said that if an officer believes that an exception applies, the summons must spell out the specific facts that justify it and must have written approval from a superior officer who is not below the rank of Superintendent of Police.

The Bar argued that summoning lawyers violates Articles 19(1)(g) and 21, as it interferes with their professional duties and clients right to effective legal representation. The court agreed that breaching confidentiality undermines these rights, noting that Section 132 of the BSA echoes the constitutional safeguard against self-incrimination under Article 20(3).

While it declined to create new guidelines or procedures, it held that sufficient judicial oversight already exists under Section 528 of the BNSS. This provision allows any person, including an advocate, to challenge a summons before a court. The bench said, “We cannot deny the power altogether or place fetters on it by framing guidelines.” It added that the constitution provides adequate safeguards if investigative powers are misused.

The court drew a clear line between confidential communication and the production of documents or devices. It held that Section 132 protects communications, not the physical or digital materials themselves. Under Section 94 BNSS, an investigating officer may direct production of documents or devices believed to be relevant, but this must be done through the court, not directly to investigators.

The court mandated that both the lawyers and the client be notified before any such production, allowing them to raise objections. If the device is examined, it must be done under judicial supervision, in the presence of the lawyer and client, and only relevant material may be accessed. To protect confidentiality, the court must ensure that information relating to other clients remains sealed and untouched.

On the matter of in-house counsels, the SC noted that the in-house legal advisers are not covered by the privilege under Section 132, as they are salaried employees of a company. They fall outside the ambit of the definition of an “advocate” under the Advocates Act, 1961, which requires professional independence. The bench noted that in-house lawyers do not enjoy the same degree of independence as external counsel, as their employment relationship may align with business interests. However, they retain limited protection under Section 132 of the BSA, which prevents disclosure of confidential communications made to them in their role as legal advisers, though this does not cover internal exchanges between them and their employers.