No Summons to Advocates Except Under Section 132 BSA; Prior Approval from Superior Officer Essential: Supreme Court

Case Name: In Re: Summoning Advocates Who Give Legal Opinions or Represent Parties During Investigation of Cases and Related Issues. 

Introduction

As part of what the court called a “landmark decision” to safeguard the autonomy of the legal profession and thwart arbitrary action by investigating authorities, the Supreme Court issued broad directions regulating the way summons is issued to advocates in criminal cases. A Bench of Chief Justice of India BR Gavai, Justice K. Vinod Chandran, and Justice N.V. Anjaria gave the ruling in a Suo motu case taken by the Court to deal with the rising tension over investigating authorities summoning advocates on account of the legal advice they had given their clients. The Court noted that these kinds of intrusions strike at the heart of the right to legal representation and the sanctity of the confidentiality of the advocate-client relationship, and that the summons of an advocate shall not take place except under the exceptions contained in Section 132 of The Bharatiya Sakshya Adhiniyam, 2023 (BSA), and only with permission obtained in advance from a superior officer.

Background of the Case

The suo motu case arose out of the dustup generated by the Enforcement Directorate's action in summoning two Senior Advocates: Arvind Datar and Pratap Venugopal. Considering bar associations protesting the ED's actions, the ED withdrew the notice originally issued to the advocates and issued a circular disclaiming any authority to summon lawyers without the director's prior authorization. The matter was then taken up by a bench of Justice KV Viswanathan and Justice NK Singh, where there were concerns about police and investigative bodies summoning advocates, and referred the issue to the Chief Justice of India in a case where Gujarat Police had issued a summons to an advocate that represented an accused. The bench kept the notice and said that summoning advocates would undermine the independence of the legal profession and affect the fair administration of justice. After Justice Viswanathan's bench intervened, a Suo motu case was registered on 4 July.

Supreme Court Ruling in the Matter of Advocate Summon

While the Court abstained from “directing” any guidelines and excluded the need for Magisterial supervision before the issuance of summons, it issued certain directions.

Justice Vinod Chandran said,

"We have tried to harmonise the evidentiary rule with the procedural rule and issued the following directions." 

Directions

1. Section 132 of the Bharatiya Sakshya Adhiniyam is a privilege conferred on the client obliging the advocate not to disclose any professional communications made in confidence. Investigating officers in the criminal cases, Station House Officers conducting preliminary enquiry in a cognizable offence shall not issue a summons to an advocate who represents the accused to know the details of the case, unless it is covered under any of the exceptions under Section 132 BSA. When a summons is so issued to the advocate under any of the exceptions, it shall exclusively specify the facts on which the exception is sought to be relied upon and shall also be issued with the consent of a superior officer not below the rank of a Superintendent of Police, who shall record his satisfaction as to the exception in writing before the summons is issued.

2. A summons so issued shall be subject to judicial review at the instance of the advocate or the client under Section 528 BNSS.

3. The advocate on whom there is an obligation of non-disclosure is one who is engaged in litigation or in a non-litigatious or pre-litigation matter.

4. Production of documents in the possession of an advocate of the client will not be covered by the privilege under Section 132, either in a civil case or a criminal case. In a criminal case, the production of a document directed by a court or an officer shall be complied with by production before the Court under Section 94 of the BNSS being regulated also by Section 165 of the BSA. In a civil case, the production of documents shall be regulated by Section 165 of BSA and Order 16 Rule 7 of the Civil Procedure Code. On production of documents, it shall be upon the Court to decide any objections with respect to the order to produce and the admissibility of the document after hearing the advocate and the party whom the advocate represents.

5. The production of digital devices under Section 94 BNSS: if directed by an investigating officer, the direction shall only be to produce it before the jurisdictional court. On production of a digital device by the advocate before the Court, the Court shall issue notice to the party with respect to whom the details are sought to be discovered from the digital device and hear the party and the advocate on any objection to the production of the digital device, discovery from it and the admissibility of that discovery. If the objections are overruled by the Court, the device shall be opened only in the presence of the party and the advocate, who will be enabled due assistance of a person having expertise in digital technology of their choice. While examining the digital device, care shall be taken by the Court not to impact the confidentiality with respect to the other clients of the advocate, and disclosure shall be confined to what is sought by the investigating officer, if it is found to be permissible and admissible.

6. In-house counsels will not be covered under the protection under Section 132 BSA as they are not advocates practicing in Courts. In-house counsel will be, however, entitled to protection under Section 134 BSA insofar as any communication made to the legal advisor, which, however, cannot be claimed for the communications between the employer and the in-house counsel.

With the above directions, the suo motu case was disposed of. The summons issued to the lawyer in the Special Leave Petition were quashed.

As per the BSA, the privilege of non-disclosure under Section 132 is not available to:

(a) any such communication made in furtherance of any illegal purpose; 

(b) 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.

Way forward:

To sum up, the directions issued by the Supreme Court are a landmark step in safeguarding not just the integrity of the legal profession but the advocate-client relationship. The Court has stated that advocates are protected from arbitrary summons and that the only exceptions to this rule must follow the requirements set out in Section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) and obtain prior authority from a superior to ensure that advocates are not unnecessarily harassed while ensuring that justice is fairly administered and upheld.

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