The Supreme Court on Friday ruled that, as a general principle, investigating agencies such as the Enforcement Directorate (ED) cannot summon advocates in connection with the legal advice they have given to their clients. However, it clarified that under exceptional circumstances covered by the exceptions specified in Section 132 of the Bharatiya Sakshya Adhiniyam, 2023, such a summons may be issued. The apex court also cautioned investigating officers against overstepping this statutory privilege, warning that any impulsive transgression into the confidential communications between a lawyer and their client would amount to a violation of the law.
While stating that on a broad conspectus of the Client-Advocate privilege as codified in Section 132 to 134 of the BSA; though we are not persuaded to lay down any guidelines, a bench of Chief Justice B.R. Gavai, Justice K. Vinod Chandran and Justice N.V. Anjaria in a judgment today issued a slew of directions to ensure that the privilege is “not impinged upon by investigating ogfficers/agencies.
Speaking for the bench, Justice Vinod Chandran said, “On a broad conspectus of the Client-Advocate privilege as codified in Section 132 to 134 of the BSA, we are not persuaded to lay down any guidelines, which we believe are sufficiently available on an interpretation of the provisions itself, which also restrains us from constituting a committee of legal professionals, we issue the following directions; to ensure that the privilege is not impinged upon by valiant investigators or overzealous parties to a litigation, purely on the basis of the interpretation of the evidentiary rules codified the gallant Investigating Officers from transgressing impulsively, the privilege under Section 132 BSN.”
The apex court issued directions which essentially seek to guard against the investigating agencies taking recourse to the exceptions under Section 132 of the BNS, and impulsively transgressing the client-advocate privilege, which could result in violating the statutory provision and, more importantly, result in the infringement of the fundamental rights guaranteed to the person whom the Advocate represents, by the Constitution of India.
Under the slew of directions issued today, the apex court has said Section 132 recognises the client’s privilege of confidentiality, imposing an obligation on Advocates not to disclose any professional communications made in confidence. This privilege, in the client’s absence, may be invoked by the Advocate on the client’s behalf. The protection extends to Advocates engaged in litigation, as well as in non-litigious or pre-litigation matters.
Investigating Officers or Station House Officers conducting inquiries into cognisable offences are prohibited from summoning an Advocate representing the accused to seek details of the case, except in circumstances falling within the exceptions to Section 132. When such a summons is issued, it must clearly state the facts justifying the exception and receive prior approval from a superior officer not below the rank of Superintendent of Police, who must record written satisfaction regarding the same. Any summons so issued is open to judicial review by either the Advocate or the client under Section 528 of the BNSS.
The privilege under Section 132 does not extend to documents in the possession of an Advocate or the client, whether in civil or criminal proceedings. In criminal cases, when a Court or an authorised Officer directs the production of such documents, compliance must be made by producing them before the Court in accordance with Section 94 of the BNSS, subject to the provisions of Section 165 of the BSA.
In civil proceedings, the production of documents is governed by Section 165 of the BSA and Order XVI Rule 7 of the Civil Procedure Code. Once the documents are produced, it is for the Court to adjudicate on any objections raised regarding the order of production or the admissibility of the documents, after hearing both the Advocate and the party represented.
When a digital device is produced before the Court by an Advocate, the Court must first notify the party concerned and provide an opportunity to both the Advocate and the party to raise objections regarding the production, discovery, or admissibility of any material from the device. The Court shall hear these objections before permitting any further action.
If the Court overrules the objections, the device may be examined only in the presence of the Advocate and the party, who may engage a digital technology expert of their choice for assistance. During the examination, the Court must ensure that the confidentiality of other clients represented by the Advocate is not compromised, and the discovery must remain strictly limited to the specific information sought by the Investigating Officer, provided it is legally permissible and admissible.
Though the in-house counsel will not be entitled to the privilege under Section 132 since they are not Advocates practising in Courts as spoken of in the BSA. However, the in-house counsel would be entitled to the protection under Section 134 insofar as any communication made to the legal adviser of his employer, which, however, cannot be claimed for the communications between the employer and the in-house counsel.
The suo motu matter is rooted in a reference made by a two-judge bench. The matter relates to a summons issued to a senior advocate in respect of advice given by him to his client. The summoning of the advocate by an investigating agency created serious concerns in the legal fraternity.
The questions that arose for the consideration of a three-judge bench included (i) When an individual has the association with a case only as a lawyer advising the party, could the Investigating Agency/Prosecuting Agency/Police directly summon the lawyer for questioning? (ii) Assuming that the Investigating Agency/ Prosecuting Agency/Police has a case that the role of the individual is not merely as a lawyer but something more, even then, should they be directly permitted to summon or should judicial oversight be prescribed for that exceptional criterion of cases?