Why investigators cannot summon lawyers

It made the observations during a hearing involving a Gujarat-based lawyer, who was summoned by police for securing bail for his client in a loan dispute case.

This came days after the Supreme Court Bar Association condemned the summons issued by the Enforcement Directorate (ED) to two senior advocates of the top court, Arvind Datar and Pratap Venugopal, on June 12 and June 18 respectively. 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.

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.

No other professionals, including chartered accountants, company secretaries, and cost accountants, have this privilege.

What have courts said on such summons to lawyers?

Over the years, courts have asserted that police or prosecution agencies cannot issue summons to lawyers for advising their clients.

In A.V. Pavithran v. CBI (2024), the Bombay High Court quashed summons issued by the Inspector General (IG) of the Central Bureau of Investigation (CBI) in Goa to Advocate A V Pavithran. The summons required Pavithran to appear before the IG as the agency wanted to question him in connection with a case registered under the Prevention of Corruption Act, 1988, involving his client whose bank accounts had been frozen by the CBI.

In its order, the court noted that any legal advice rendered is not subject to disclosure under Section 126 of the Indian Evidence Act (now Section 132 of the BSA).

“The rule is ‘once privileged, always privileged’. Under Section 126, an Advocate is not permitted to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment,” the court said.

In Praram Infra v. State of M.P., the Madhya Pradesh High Court, in March 2025, quashed summons issued by Indore’s Deputy Commissioner of Police (DCP) to Advocate Rahul Maheshwari, who represented the petitioner in the case.

In this instance also, the court cited Section 126 of the Indian Evidence Act in its order as the reason for quashing the summons. The High Court said that such summons should not be issued, especially when the advocate is neither an accused nor a witness.