Advocates Protected from Arbitrary Summons by Investigating Agencies for Legal Advice in Criminal Cases: Supreme Court [Read Order]
The Apex Court affirmed that advocates are shielded from arbitrary police or ED summons for merely rendering client advice.
The Supreme Court, in a significant judgment, has held that investigating agencies cannot summon advocates merely for providing legal advice or representing clients in criminal cases, reaffirming the sanctity of lawyer-client privilege as covered under Section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA).
The matter arose out of a Special Leave Petition challenging a summons issued to an advocate by the Ahmedabad Police under Section 179 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), calling upon him to appear “to know true details of the facts and circumstances” of a case involving his client.
The Gujarat High Court upheld the summons by the police, prompting the Supreme Court to take up the issue suo motu to determine under what circumstances investigating agencies may summon advocates involved only in professional capacity.
During the proceedings, the Court heard Vikas Singh - Senior Advocate and President, Supreme Court Bar Association, Atmaram N.S. Nadkarni, Vipin Nair - President, Supreme Court Advocates-on-Record Association (SCAORA) and other senior lawyers including Siddharth Luthra and Shoeb Alam who appeared on behalf of the legal fraternity.
Attorney General R. Venkataramani and Solicitor General Tushar Mehta represented the Union of India and the State of Gujarat.
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The Bar argued that summoning advocates for acts done in professional capacity violated Articles 19(1)(g) and 21 of the Constitution and undermined the client’s statutory privilege of confidentiality as also covered under Section 132 of the BSA. They urged the Court to frame guidelines mandating judicial oversight before issuing such summons.
The Attorney General and Solicitor General, however, maintained that the existing statutory provisions under the BSA adequately protected lawyers and clients and warned that creation of a new specific guidelines would disrupt the well-crafter legislative provision that has withstood the test of time in this Country, right from the time of the Indian Evidence Act, 1872.
The Bench, comprising Chief Justice B.R. Gavai, Justice K. Vinod Chandran and Justice N.V. Anjaria agreed that while no new guidelines were needed, strict compliance with existing law must be ensured and that the immunity with respect to professional communication would not absolve the liability of an advocate in the event wherein the advocate participates in a crime, which is squarely beyond his professional duty.
The Court held that investigating officers cannot directly summon lawyers for information relating to clients unless the case falls under the specific exceptions of Section 132 such as communications made in furtherance of an illegal purpose or observation of a crime or fraud during representation.
The Bench reiterated the exceptions,i.e, waiver/consent from the client, furthering of an illegal purpose, observation of a crime or a fraud committed in the course of his engagement.
The Court directed that any summons to an advocate must have the prior written approval of a superior officer not below the rank of Superintendent of Police, with reasons recorded in writing, and should specify the legal exception under Section 132 invoked. Such summons, the Court clarified, would be subject to judicial review under Section 528 of the BNSS.
Considering the facts in the present case, the Supreme Court noted that the summons in the present case was “illegal and unsustainable”, accordingly quashing the same.
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