Client Confidentiality at Risk? Supreme Court Slams Police for Targeting Lawyers Over Legal Advice
Section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (earlier Section 126 of the Indian Evidence Act, 1872 ) clearly prohibits lawyers from disclosing any communication made to them in the course of their professional duties, except where such communication was made in furtherance of an illegal act or if the client waives that privilege
The Supreme Court today took a firm stand in defence of the legal profession’s autonomy, expressing prima facie concern over the practice of summoning lawyers by police or investigating agencies merely for offering legal advice to clients. The Court noted that such actions not only threaten the independence of the legal profession but also pose a serious challenge to the very integrity of the justice delivery system.
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The case was brought before a Bench comprising Justices KV Viswanathan and N Kotiswar Singh, in connection with a Gujarat-based advocate who was summoned by local police after representing a client in a bail matter stemming from a loan dispute. Despite the advocate having no role beyond legal representation, he received a notice under Section 179 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) seeking “true details of facts and circumstances of the case.”
Calling the development deeply concerning, the Bench noted: “The legal profession is an integral component of the process of administration of justice. Counsels engaged in legal practice have certain rights and privileges—granted not only by statutory provisions but by the nature of their role in the justice system. Permitting police or investigating agencies to summon defence counsel merely for advising a party undermines this autonomy and directly threatens the independence of the legal system.”
The Court further found merit in the petitioner’s contention that lawyers have a binding duty to maintain confidentiality over client communications. “Permitting such summons seriously threatens the professional obligations and constitutionally protected space lawyers occupy,” the petitioner argued—and the Bench appeared to agree.
At the heart of this legal storm lies the principle of attorney-client privilege, protected under law for over a century. Section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (earlier Section 126 of the Indian Evidence Act, 1872 ) clearly prohibits lawyers from disclosing any communication made to them in the course of their professional duties, except where such communication was made in furtherance of an illegal act or if the client waives that privilege. Section 129 extends this protection to clients themselves, shielding them from being compelled to reveal such discussions.
The Court framed two vital constitutional questions for further examination: (i) Can a lawyer, associated only in their professional capacity with a case, be directly summoned by the police or agency? (ii) Even in rare cases where the lawyer’s role is more than professional, should judicial oversight be required before summoning?
“What is at stake is the efficacy of the administration of justice and the capacity of lawyers to conscientiously—and more importantly, fearlessly—discharge their duties,” the Court remarked, emphasizing that subjecting advocates to the “beck and call” of police simply for doing their job was prima facie unacceptable.
Recognizing the broader implications for the legal fraternity and justice system, the Court sought the assistance of key legal figures: Attorney General R Venkataramani, Solicitor General Tushar Mehta, Bar Council of India Chairman Manan Kumar Mishra, SCBA President Vikas Singh, and SCAORA President Vipin Nair. The matter has been referred to Chief Justice of India BR Gavai for further directions.
Meanwhile, the Supreme Court has stayed the operation of the notice issued to the petitioner and any similar summons from the Gujarat police. “There shall be a stay of operation of the notice dated [...] and such other notices that may have been issued to the petitioner,” the Court ordered.
The issue resonates across the legal community, especially in light of recent incidents where two Senior Advocates were summoned by the Enforcement Directorate for legal advice given to clients—an action that triggered widespread protest and calls for suo motu action by the apex court. The summons were eventually withdrawn, but the anxieties they raised continue to linger.
With the profession’s independence hanging in the balance, the upcoming hearings could mark a pivotal moment in defining the boundaries between legal advice and police overreach.
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