Investigative agencies summoning lawyers violates the lawyer-client privilege
Written by Shailee Basu
The Supreme Court's initiation of suo motu proceedings concerning investigating agencies directly summoning lawyers marks a critical juncture in the ongoing tension between investigative autonomy and the independence of the legal profession. This development, prompted by the Gujarat Police summoning a lawyer representing a client, follows another controversial incident: The Enforcement Directorate (ED)'s summons issued to Senior Advocates Arvind Datar and Pratap Venugopal, relating to their advisory services on Employee Stock Option Plans (ESOPs) of Care Health Insurance.
The SC's cognisance of these incidents underscores a growing concern. Unchecked investigative authority risks compromising judicial fairness and undermining fundamental principles of criminal justice.
Lawyer-Client privilege: A constitutional safeguard
This issue raises many questions about lawyer-client privilege and the independence of legal counsel that underpin fair trial rights and are embedded within Article 22(1) of the Constitution. The SC, recognising the gravity of the issue, observed that allowing agencies to directly summon defence counsel or legal advisors merely for rendering professional services would 'seriously undermine the autonomy of the legal profession' and pose a threat to 'the independence of the administration of justice.'
Lawyer-client privilege is neither novel nor peculiar to Indian jurisprudence. It is a universally accepted safeguard embedded in common law traditions. In India, it is statutorily codified in Section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), the successor to Section 126 of the Indian Evidence Act, 1872. This provision unequivocally protects confidential communications between lawyers and clients from compelled disclosure without the client's consent.
In State of Punjab vs Sodhi Sukhdev Singh (1961), the SC affirmed the sanctity of this privilege, holding that confidentiality between a lawyer and client is essential to effective legal representation and the fair administration of justice. Breaching this confidentiality undermines not only professional integrity but also erodes public confidence in the impartiality of the legal system.
Investigative powers and statutory limits
Investigating agencies, empowered under various statutes, do possess broad discretionary powers. However, these powers must be exercised within clearly defined legal and constitutional limits. The ED's summons, withdrawn after strong objections from Bar associations across the country, highlighted the dangers of unconstrained investigative discretion. The agency subsequently issued a circular advising its officers not to issue summons in violation of Section 132 of the BSA, implicitly acknowledging the earlier overreach.
It is essential to distinguish between legitimate legal representation and active complicity in criminal conduct. To collapse this distinction would impact the willingness of lawyers to represent clients in politically sensitive and high-stakes matters, thereby impairing access to justice.
The imperative for judicial oversight
In this context, the SC's intervention is both necessary and timely. Investigations that seek to implicate lawyers beyond their professional roles must be subjected to judicial oversight. Such oversight, ideally at the level of a magistrate or special judge, must require a detailed, reasoned order that explains why legal privilege does not apply, as and when a lawyer is summoned. Additionally, notifying the relevant Bar Council or association would provide an institutional safeguard, consistent with international best practices.
Global jurisprudence strongly supports such oversight. In the United Kingdom, investigative actions involving lawyers, such as searches and seizures, require prior judicial authorisation under Section 8 of the Police and Criminal Evidence Act 1984 (PACE). Likewise, the European Court of Human Rights in Niemietz vs Germany (1992) held that law offices are entitled to heightened protection, adding that unrestricted searches threaten both legal professional privilege and the integrity of the justice system.
Rule of law and fair trial
The risk of investigative excess is especially acute in politically charged or complex corporate matters. The recent episodes involving Senior Advocates Datar and Venugopal illustrate how easily legal advice can be misconstrued as complicity, thereby turning investigative mechanisms into tools for intimidation or retribution. When the state's investigative powers operate without clearly articulated limits, they risk becoming instruments of coercion rather than instruments of justice.
Lawyers, like all citizens, are not above the law. But accountability must be balanced by institutional safeguards that protect the lawyer's role as a facilitator of justice. The SC's intervention is not simply about defending a professional class; it is about reaffirming the constitutional architecture of legal representation: Rule of law and a fair trial.
The writer is a lawyer and Research Fellow with the Crime & Punishment team at Vidhi Centre for Legal Policy. Views are personal
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