New Delhi, Oct 31: In a significant verdict aimed at protecting lawyer-client privilege, the Supreme Court on Friday issued a slew of directions to curb arbitrary summoning of lawyers by probe agencies for rendering advice, and said investigating officers cannot summon them in criminal probes unless approved by the superintendent of police.
The top court also set aside the summons issued by the Enforcement Directorate (ED) to two senior lawyers, Arvind Datar and Pratap Venugopal, and said they infringed the fundamental rights of the accused who hired them.
A bench comprising Chief Justice B R Gavai and Justices K Vinod Chandran and N V Anjaria delivered the verdict in a suo motu case taken up after the ED summoned Datar and Venugopal in connection with a money laundering probe.
Pronouncing the verdict for the bench, Justice Chandran said they have sought to “harmonise the exemption to the rule” protecting advocates and issued fresh directions to safeguard the legal profession from undue pressure by probe agencies.
While pronouncing the operative parts of the verdict, the judge said the bench ruled out the need for magisterial supervision before the issuance of summons by probe agencies.
“We have tried to harmonise the evidentiary rule with the procedural rule and issued the following directions,” Justice Chandran said.
Referring to Section 132 of the Bharatiya Sakshya Adhiniyam (BSA), the verdict said it is a privilege conferred on the client obliging the advocate not to disclose any professional communications made in confidence.
“Investigating officers (IOs) 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,” it said.
It said the summons issued to advocates shall be subject to judicial review at the instance of the advocate or the client under the BNSS (Bhartiya Nagrik Suraksha Sanhita), 2023.
It said the power of non-disclosure would apply to the advocates who are engaged in “a litigation or in a non-litigatious or a pre-litigation matter”.
“Production of documents of the client under the possession of an advocate will not be covered by the privilege under Section 132, even in a civil case or a criminal case,” it said.
It said on production of documents, it is the court concerned which will decide any objections with respect to the order to produce and the admissibility of the papers after hearing the parties.
“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,” it said.
If a digital device is produced, the court will issue notice to the party with respect to whom the details are sought to be discovered from the digital device, and hear him and the advocate on any objection, it said.
If the objections are overruled, then the device can be opened in presence of the party and the advocate who will be provided assistance of domain experts of their choice, it said.
“While examining the digital device, the confidentiality of other clients shall not be compromised and disclosure shall be confined to the sole client, if it is found to be permissible,” it said.
The bench, however, clarified that “in-house counsels”, who are not practising law in courts, will not be covered under the protection granted under section 132 BSA.
Section 132 deals with the professional communications of lawyers with their clients.
“No advocate, shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his service as such advocate, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional service, or to disclose any advice given by him to his client in the course and for the purpose of such service:,” the section reads.
The detailed judgement is awaited.
On August 12, the bench had reserved its verdict in the matter, calling itself the “custodian of all citizens in the country” while addressing concerns about probe agencies seeking to question lawyers representing accused persons.
The suo motu proceedings were triggered after the ED summoned Datar and Venugopal, a move sharply criticised by the Supreme Court Bar Association (SCBA) and the Supreme Court Advocates-on-Record Association (SCAORA) as a “disturbing trend” undermining the legal profession.
Following the controversy, the ED had on June 20 issued internal directions barring its officers from summoning advocates in money laundering cases except with prior approval of the Director and in compliance with Section 132 of the BSA.(Agencies)
