The Supreme Court of India has made a significant ruling, affirming that investigative agencies are prohibited from summoning lawyers or coercing them into revealing confidential communications with their clients. This decision underscores the essential principle of professional privilege and ensures the independence of the legal profession.
This case was initiated by the Supreme Court itself following actions by the Enforcement Directorate (ED), which summoned two senior advocates concerning legal advice they provided. This move sparked widespread protests within the legal community, as it was perceived as a grave threat to professional independence. The ED eventually withdrew the summons, acknowledging the outcry.
Both the Attorney General and Solicitor General articulated that such actions by investigative bodies could severely undermine the critical role played by advocates, who often represent victims, accused individuals, and marginalized groups.
The Supreme Court declared that forcing lawyers to divulge client information constitutes an "outrageous" breach of trust and indicates a failure at the investigative level. Furthermore, it violates a client's constitutional protection against self-incrimination as enshrined in Article 20(3).
The Court emphasized that lawyer-client privilege is explicitly safeguarded under Section 132 of the Bharatiya Sakshya Adhiniyam (BSA), 2023. This provision prevents compelling an advocate to disclose any communication related to the cases they are handling unless the client consents or the communication was intended for an unlawful purpose.
The ruling reinforced that lawyers are not instruments of investigative agencies. Their independence is protected under Article 19(1)(g), which guarantees the freedom to practice a profession, Article 21, which protects the right to life and liberty, and the Advocates Act, 1961.
According to the judgment, any summons issued to an advocate must receive approval from a senior officer, at least of Superintendent of Police rank. Furthermore, the officer must document the reasons for any exception under Section 132 before issuing such a summons.
The Court clarified that the privilege under Section 132 does not extend to documents held by an advocate or client concerning civil or criminal cases. If an advocate's digital devices are requested, they must be presented to a jurisdictional court and opened only in the presence of the concerned party, their advocate, and a chosen technical expert.
The ruling also pointed out that in-house legal counsel are not covered by Section 132, as the privilege is reserved for advocates practicing before courts.
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