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Why in-house counsel can’t claim client attorney privilege under Section 132 of BSA: Supreme Court explains
Supreme Court on in-house lawyers, Advocates Act 1961: The apex court noted that in house counsel will not be entitled to the privilege under Section 132 of BSA since they are not advocates practicing in courts.
Section 132 BSA: Supreme Court held that an in house counsel is not entitled to client attorney privilege under Section 132 of BSA.
Advocates act 1961 supreme court: The Supreme Court has held that in-house counsels employed by corporate entities will not be entitled to client-attorney privilege under Section 132 of the Bharatiya Sakshya Adhiniyam (BSA) since they are not advocates within the meaning of the Advocates Act, 1961.
“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,” a bench headed by Chief Justice of India B R Gavai held.
Section 132 of BSA protects communications between an advocate and their client subject to exceptions. These exceptions are:
Any such communication made in furtherance of any illegal purpose;
Any fact observed by any advocate, in the course of his service as such, showing that any crime or fraud has been committed since the commencement of his service.
The bench also comprising Justice K Vinod Chandran and Justice N V Anjaria made this observation while dealing with a suo motu case on investigating agencies summoning advocates for legal advice given to their clients.
The court, however, held that in-house counsel would be entitled to the protection under Section 134 of BSA for communication made to the legal advisor of his employer.
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Section 134 contains provisions for protection of confidential communication with legal advisers.
“The In-house counsel, however, would be entitled to the protection under Section 134 insofar as any communication made to the legal advisor of his employer, which however, cannot be claimed for the communications between the employer and the In-house counsel,” the court held.
The General Counsels Association of India, members of which are the general counsels and legal advisors of prominent companies, had filed an intervention application in this case asserting their rights under Section 132 and 134 of BSA.
The court observed their regular employment with full salaries takes them away from the definition of an advocate as defined under the Advocates Act 1961.
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“Whether, in his employment, an In-house Counsel advises his employer on legal affairs would not bring an Inhouse counsel, a fully salaried employee, within the definition of an Advocate which would also not enable him to claim the privilege with respect to communications with his employer as available under Section 126, but could definitely take up other pleas, which we are not required to look into at this stage,” the order said.
The court noted that an in-house counsel is influenced by the commercial and business strategies pursued by his employer and would always be beholden to his employer and obliged to protect their interest.
“An In-house counsel though is engaged in the job of advising his employer on questions of law would even then be influenced by the commercial and business strategies pursued by his employer and would always be beholden to his employer and obliged to protect their interest,” the court held.
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