Is the ED Undermining the Constitution by Targeting Lawyers?

The Hindu

3 days ago

Published : Jun 25, 2025 14:29 IST - 8 MINS READ
There are some principles so deeply woven into the fabric of a constitutional democracy that to question them seems absurd.
One such well-established principle that lies at the foundation of fair legal systems is the advocate-client privilege, recognised as early as the 16th century. One of the earliest recorded English cases involving legal privilege was Berd v. Lovelace Ch., Cary 62, 21 Eng.Rep. 33 (1577). A solicitor named Thomas Hawtry was served a subpoena to testify in a case he was professionally involved in. As it turned out, Hawtry had 'received several fees of the defendant', making him not just a witness, but the legal adviser to one of the parties.
Interestingly enough, privilege was already assumed to be established practice by this time and certain communications made in confidence between advocates and clients were not to be disclosed in evidence in judicial proceedings without the client's consent. As such the English Court of Chancery refused to compel his testimony and he could not be deposed. The rationale was ethical, not constitutional: advocates were 'gentlemen' who should not betray confidences. The advocate had a 'duty of honour'—an early form of what we now call legal ethics.
Privilege: a bedrock of justice
Over time, in the 19th century, legal privilege transformed from an advocate's ethical duty to a client's legal right. For an adversarial legal system, this shift was essential, as otherwise the entire justice system would be compromised. This modern principle became settled law after the landmark judgment of Lord Selborne, L.C. in Minet v. Morgan ((1873) L.R. 8 Ch. App. 361.) which clarified that legal professional privilege will attach to confidential communications that were made either with reference to existing or contemplated litigation, or for the purpose of obtaining professional legal advice.
Soon thereafter, legal privilege came to be rooted in constitutional protections in various jurisdictions, notably in countries with common law system that inherited British traditions like the US, Canada, Australia, and India, as an accused person's right against self-incrimination. Without this protection, individuals would be trammeled by the apprehension that a frank disclosure of facts to their counsel may somehow be subject to being used against them, thereby compromising their access to justice.
Also Read | The Supreme Court just made it harder for women to become district judges
Constitutional protection
Section 132(1) of the Bharatiya Sakshya Adhiniyam (BSA), 2023, and the earlier sections 126–129 of the Indian Evidence Act, 1872, recognise and afford privileged status to communications between advocates and their clients. A corresponding obligation is also cast on advocates not to reveal privileged communications under the rules of the Bar Council of India. However, this privilege is not a mere statutory protection, rather it is one of the fundamental rights located in Article 20(3) of the Constitution as an accused person's right against self-incrimination. If an individual's discussions with their legal counsel were to be permitted to be subpoenaed in investigation, they will be unable to seek robust legal advice, and rely on counsel without fear that it might become criminal evidence.
Without this protection, individuals would be caught between a rock and a hard place having to risk sound legal counsel over incriminating themselves. Therefore, this privilege and right essential for fair functioning of the criminal justice system protects the individual or client, and really belongs to them and not to their advocate. It is the thread that ties individual liberty to constitutional protections and if the space for such privilege collapses, it would jeopardise every citizen's fundamental right against self-incrimination, fair defence, due process, and equality before law.
Summoning senior advocates
The protections that our Constitution affords, both civil and criminal, to all citizens of the country are dependent on the aid of those skilled and trained in the law. Without these protections, individuals would hesitate to seek legal advice as disclosure of any facts and thoughts could become evidence to be used against them. Equally, this privilege is incumbent on the advocate to protect the confidentiality of their clients. Therefore, the maintenance of confidentiality in the relationship between an advocate and client is an essential thread to the effective operation of the legal system.
Yet, in a deeply troubling trend, the Enforcement Directorate (ED) has begun to fray that thread—by summoning Senior Advocates under the Prevention of Money Laundering Act, for rendering legal opinions to clients in the normal course of their professional work. The summons do not accuse the Senior Advocates of criminal complicity. Instead, they are expected to justify the legal opinions they offered, sometimes years prior, to clients who are now under investigation.
When investigating agencies summon advocates rendering legal advice, it sets a dangerous precedent, eroding trust in the legal process and damaging professional independence. In a country governed by rule of law, legal privilege protects the fundamental rights of the citizens forming a crucial and indispensable cornerstone of justice. Such actions undermine this essential legal scaffolding and strike at the core of how justice is supposed to function in a society governed by rule of law.
Be you ever so high, the law is above you
The summons issued to Senior Advocates early in June were withdrawn by the ED. The ED issued a press release dated June 20, clarifying its position on not issuing summons under money laundering investigations to advocates without adhering to legal privilege. Further, it clarified that if any summons need to be issued under the exceptions carved out in the proviso to Section 132 of the BSA, the same shall be issued only with the prior approval of the Director of the ED.
Two things emerge: one, the two summons were issued in violation of Section 132 of the BSA, otherwise they would not have been withdrawn; two, if summons need to be issued under the exceptions to the said provision, they shall be issued only with the prior approval of the Director of the ED. However, this requirement of prior approval of the Director is a check introduced by the ED and has no statutory backing. Thus, it will remain merely a guideline issued in a press release by the ED for its officers, and any summon issued by an officer without seeking permission of the Director would only lead to internal action and have no recourse in a court of law.
As far as advocates are concerned, they cannot be summoned for investigation in a case where they have rendered professional services, because they are statutorily protected by Section 132 of the BSA. To pierce this protection casually, without strong evidence of wrongdoing, is to play with constitutional fire.
Such privilege and protection is a pillar of rule of law, and in any society governed by the rule of law, advocates are more than service providers. They are officers of the court, defenders of liberty, and key intermediaries between citizens and the state.
The selective use of summons against advocates, particularly those representing clients involved in politically sensitive or high-profile matters, creates patterns of discriminatory enforcement that violate the guarantees of Article 14 (equality before the law) and Article 19(1)(g) (freedom to practice any profession) of the Constitution. These rights extend to both advocates and clients, whose access to free and fair legal representation becomes chilled when their counsel is subject to coercive scrutiny. A criminal court ought to reject any evidence that has come into existence solely for the purpose of being used in pending or anticipated litigation, where such evidence was extracted in derogation of legal privilege and without the consent of the person entitled to it.
Admitting such material would subvert the court's procedure and would violate Article 20(3), which protects individuals from being compelled to be witnesses against themselves thus eroding the very nature of adversarial litigation. This erosion is not merely procedural, it is profoundly constitutional and threatens to dismantle the bulwarks of constitutional protection through procedural shortcuts.
Jurisprudence and common law conceptions frame advocate-client privilege not as confined to a specific legal proceeding, but as rooted in the broader principle of preserving confidentiality. The very term 'confidentiality' is derived from the Latin word confidere—to trust, to have faith. That trust is the lifeblood of any functioning legal system. The ability of individuals and enterprises to seek legal advice freely, fearlessly, and without apprehension of state retaliation or compelled disclosure, is indispensable. If either the client or the lawyer could be compelled to reveal what passed between them in confidence, the rule of law itself would be hollowed out. While legal privilege and confidentiality are separate concepts, confidentiality is intuitively a form of privacy and an individual's right to privacy is firmly established as a fundamental right under Article 21 of the Constitution.
Also Read | Is Supreme Court exceeding its bounds by restricting Governors' authority on State Bills?
What emerges from our legal tradition, as well as from comparative constitutional jurisprudence, is clear: advocate-client privilege is not a transactional convenience or a lawyer's prerogative. It is a constitutional mechanism designed to protect the fairness of the legal process itself. The law recognises that privilege is not a technicality; it is a constitutional shield woven from the principles of equality, dignity, privacy, and due process. It ensures that individuals and entities can access legal advice without fear that their words will later be used against them. The sanctity of that relationship is rooted in trust, and that trust is in turn protected by a constellation of constitutional rights.
If this shield is weakened through selective enforcement or speculative invocation of enforcement powers, it is not merely the lawyer or the client who suffers—it is the very idea of justice that is compromised.
Rushda Khan is a financial crimes lawyer practising in the Supreme Court of India.