The Supreme Court of India, in a significant judgment, has ruled that an investigating agency “cannot directly summon a lawyer appearing in a case to elicit the details of the case.” A bench comprising Chief Justice B. R. Gavai, Justice K. Vinod Chandran, and Justice N.V. Anjaria answered a reference on the issue with an “emphatic ‘NO'”. The judgment was authored by Justice K. Vinod Chandran.
The Court, while declining to frame new guidelines, established a crucial procedural safeguard: any summons issued to an advocate invoking the exceptions to advocate-client privilege must have prior written approval from a superior officer, not below the rank of a Superintendent of Police, which must record the reasons. The Court also declared that full-time salaried “In-house counsel” are not entitled to the advocate-client privilege under Section 132 of the Bhartiya Sakshya Adhiniyam, 2023.
The ruling came in a Suo Motu Writ Petition (Criminal) No. 2 of 2025, which was initiated after a two-judge bench referred questions of “utmost public importance” regarding the summoning of advocates by investigating agencies.
Background of the Case
The matter originated from a Special Leave Petition (SLP (Crl.) Diary No. 33845 of 2025) filed by an advocate from Gujarat. An FIR was lodged at the Odhav Police Station, Ahmedabad, under provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the Gujarat Money-Lenders Act, 2011, and the SC/ST (Prevention of Atrocities) Act, 1989. The advocate filed a regular bail application for the accused, which was allowed by the Sessions Judge.
Subsequently, the Investigating Officer (Assistant Commissioner of Police, Ahmedabad) issued a notice to the advocate under Section 179 of the BNSS, directing his appearance “so as to ‘know true details of the facts and circumstances after making your inquiry'”.
The advocate’s challenge was rejected by the High Court, which opined that his non-cooperation stalled the investigation. The Supreme Court’s two-judge bench, hearing the SLP, found that such interference “directly impinges upon the administration of justice” and referred the matter for a comprehensive decision.
Arguments of the Bar
Various bar associations, including the Supreme Court Bar Association (SCBA) and the Supreme Court Advocates-On-Record Association (SCAORA), intervened.
- The Bar argued that the summons was an “unconscionable, outrageous interference” with the fundamental right to practice under Article 19(1)(g) and Article 21, and the Advocates Act, 1961.
- It was contended that Section 132 of the Bhartiya Sakshya Adhiniyam, 2023 (BSA) (which protects “Professional Communications”) is a protection afforded to the client, and forcing an advocate to disclose privileged communication would expose the advocate to professional misconduct.
- Citing Jacob Mathew v. State of Punjab (regarding professionals with special skills) and Vishaka v. State of Rajasthan (where the SC framed guidelines in a legislative vacuum), the Bar urged the Court to lay down comprehensive guidelines, including a peer-review committee or judicial oversight by a Magistrate, before any such summons could be issued.
The State’s Submissions
The learned Attorney General of India, Mr. R. Venkataramani, and the learned Solicitor General of India, Mr. Tushar Mehta, appearing for the Union of India and the State of Gujarat, did not take an adversarial stance.
- They agreed that “no Advocate can be summoned for reason only of giving a legal opinion or appearing for a party in a case.”
- However, they submitted that the immunity is not absolute and does not absolve an advocate’s liability “in the event of an Advocate participating in a crime which is beyond his professional duty.”
- The State argued that no guidelines were required, as the statutory provisions (Sections 132-134 of the BSA) are clear and have “withstood the test of time.” The exceptions under the proviso to Section 132 (communications in furtherance of an illegal purpose, or observation of a crime/fraud) were sufficient.
- It was argued that creating a “separate procedure… for Advocates would result in creation of a separate class,” violating Article 14, and that unlike in Vishaka, there was “no legislative vacuum” to be filled.
Supreme Court’s Analysis and Reasoning
The Supreme Court, after deliberating the arguments, declined to frame new guidelines, holding that the existing statutory framework provides sufficient remedies.
1. On Guidelines and Peer-Review: The Court distinguished the precedents cited by the Bar.
- It held that Jacob Mathew was not applicable as it “dealt with negligence as a criminal liability particularly on the aspect of medical negligence.” The present case “is not concerned with any aspect of professional negligence.”
- Vishaka was also distinguished, as it was a “class action” to fill a “clear absence of legislation.” The Court found that in the present case, “we do not think that… there is a judicial vacuum requiring us to step in.”
- The Court rejected the plea for a peer-review committee or pre-summons magisterial approval, finding it would be “in derogation of the provisions of the BNSS” and “counter-productive,” potentially frustrating the cause of justice.
2. On Advocate-Client Privilege (Section 132 BSA): The Court affirmed that Section 132 is a “privilege conferred on the client, obliging an Advocate not to disclose any professional communications.” It is an “immunity enabled to the Advocate” which he can invoke on behalf of the client. The Court observed this privilege is also an “extension of the client’s ‘constitutional protection against self-incrimination'” under Article 20(3).
3. On Judicial Oversight: The Court held that sufficient judicial oversight already exists under Section 528 of the BNSS (the High Court’s inherent power). The Court found that the High Court in the original case had “abdication
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… the inherent powers” by delivering a “flawed & erroneous” judgment.
Borrowing a phrase from Justice Oliver Wendell Holmes, the Court observed: “…the power to summon under Section 175 & 179 is not the power to interfere with the privileged communications between a lawyer and client, as long as the Constitutional Courts sit, in this Country.”
4. On Production of Documents and Digital Devices: The Court clarified that the privilege under Section 132 does not protect against the production of documents. Citing Gangaram v. Habib-Ullah, the Court noted that Section 94(3) of the BNSS does not exempt documents under Section 132.
However, it directed that any such production must be made before the Court, not the Investigating Officer. The Court will then decide on any objections to production or admissibility.
For digital devices, the Court mandated a specific safeguard: “the digital device shall be opened only in the presence of the party and the Advocate, who will be enabled due assistance of a person with expertise in digital technology, of their choice.” The Court must also take care “not to impair the confidentiality with respect to the other clients of the Advocate.”
5. On In-House Counsel: The Court held that “In-house counsel will not be entitled to the privilege under Section 132.”
- It reasoned that under the Advocates Act, 1961, and BCI Rule 49, a full-time salaried employee is not entitled to practice as an advocate.
- The Court approved the reasoning of the European Court of Justice in Akzo Noble Limited v. European Commission, stating an in-house lawyer’s “economic dependence and… close ties with his employer” means “he does not enjoy a level of professional independence comparable to that of an external lawyer” and is influenced by the “commercial strategies pursued by his employer.”
The Final Decision and Directions
The Supreme Court disposed of the Suo Motu case by setting aside the “illegal” summons issued to the advocate in the original SLP. It issued the following binding directions:
- An Investigating Officer shall not summon an advocate representing an accused to know the details of the case, unless it is covered by the exceptions under Section 132 BSA (e.g., furthering an illegal purpose).
- When a summons is issued under an exception, it must explicitly specify the facts on which the exception relies.
- Such a summons must be issued with the consent of a superior officer not below the rank of a Superintendent of Police, who shall record his satisfaction in writing.
- Any summons so issued is subject to judicial review at the instance of the advocate or client under Section 528 of the BNSS.
- Directions for the production of documents and digital devices before the Court (not the IO) were laid down, with specific safeguards for digital device inspection.
- It was declared that In-house counsel are not entitled to the privilege under Section 132 of the BSA.
