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Indian Express
a day ago
- Politics
- Indian Express
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
Indian Express
2 days ago
- Indian Express
Why investigators cannot summon lawyers
The Supreme Court on Wednesday observed that police or prosecuting agencies summoning legal professionals for advising their clients infringed on the rights of advocates and threatened the legal profession's autonomy. 'Counsel who are engaged in their legal practice have certain rights and privileges guaranteed because of the fact that they are legal professionals, and also due to statutory provisions,' the apex court said. It made the observations during a hearing involving a Gujarat-based lawyer, who was summoned by police for securing bail for his client in a loan dispute case. This came days after the Supreme Court Bar Association condemned the summons issued by the Enforcement Directorate (ED) to two senior advocates of the top court, Arvind Datar and Pratap Venugopal, on June 12 and June 18 respectively. The lawyers were summoned in connection with the agency's probe into the allotment of Employee Stock Option Plans (ESOPs) by Care Health Insurance Ltd to Rashmi Saluja, former chairperson of Religare Enterprises. Is attorney-client communication privileged? Under the Bharatiya Sakshya Adhiniyam (BSA), 2023, which replaced the Indian Evidence Act, 1872, communications between legal advisers and their clients are privileged, meaning they cannot be disclosed to a third party. Section 132 of the BSA states that an advocate is not allowed to disclose any communication, even after employment has ceased, except in three circumstances: if the client consents to it; the communication pertains to illegal purposes; and the advocate observes criminal activity being carried out during the employment. A lawyer is also exempted from testifying or revealing conversations with their client, whether made in oral, written, or electronic form. No other professionals, including chartered accountants, company secretaries, and cost accountants, have this privilege. What have courts said on such summons to lawyers? Over the years, courts have asserted that police or prosecution agencies cannot issue summons to lawyers for advising their clients. In A.V. Pavithran v. CBI (2024), the Bombay High Court quashed summons issued by the Inspector General (IG) of the Central Bureau of Investigation (CBI) in Goa to Advocate A V Pavithran. The summons required Pavithran to appear before the IG as the agency wanted to question him in connection with a case registered under the Prevention of Corruption Act, 1988, involving his client whose bank accounts had been frozen by the CBI. In its order, the court noted that any legal advice rendered is not subject to disclosure under Section 126 of the Indian Evidence Act (now Section 132 of the BSA). 'The rule is 'once privileged, always privileged'. Under Section 126, an Advocate is not permitted 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 employment,' the court said. In Praram Infra v. State of M.P., the Madhya Pradesh High Court, in March 2025, quashed summons issued by Indore's Deputy Commissioner of Police (DCP) to Advocate Rahul Maheshwari, who represented the petitioner in the case. In this instance also, the court cited Section 126 of the Indian Evidence Act in its order as the reason for quashing the summons. The High Court said that such summons should not be issued, especially when the advocate is neither an accused nor a witness.
New Indian Express
3 days ago
- Politics
- New Indian Express
Summoning lawyers over client matters threatens administration of justice, says SC
The Court framed two critical questions for consideration: When an individual is involved in a case solely as a lawyer advising a client, can the investigating agency, prosecution, or police directly summon the lawyer? And even if the agency believes the individual's role goes beyond that of legal counsel, should such instances still require judicial oversight before any summons is issued? Emphasizing the seriousness of the matter, the Court underscored that both questions must be addressed comprehensively, as the integrity and efficacy of the administration of justice are at stake Considering the importance of the matter, the Court ordered that the matter be placed before the Chief Justice of India (CJI) for appropriate directions. Meanwhile, the Court granted interim relief to the lawyer who was summoned by the police in Gujarat. 'There shall be a stay on the High Court order and a stay on the operation of summons and any other notices issued to the petitioner,' the Court ordered. The court order comes just days after a controversy broke out over Enforcement Directorate (ED)'s summons to Senior Advocates Arvind Datar and Pratap Venugopal in relation to an investigation involving the Employee Stock Option Plan (ESOP) granted by Care Health Insurance (CHIL) to former Religare Enterprises Chairperson Rashmi Saluja. Both summons were withdrawn following strong resolutions issued by Bar associations across the country. In response, the ED also issued a circular directing its officials not to summon advocates in violation of Section 132 of the Bharatiya Sakshya Adhiniyam, 2023. The Supreme Court Advocates-on-Record Association (SCAORA) had earlier written to Chief Justice B.R. Gavai, urging the Court to take suo motu cognizance of the increasing instances of lawyers being summoned by investigating agencies.
The Hindu
4 days ago
- Politics
- The Hindu
When counsel is questioned
On June 12, the legal community in India was jolted by an extraordinary move. The Enforcement Directorate (ED), while investigating the issue of ESOPs (employee stock ownership plans) to the former chairperson of Religare, summoned senior advocate Arvind Datar, to answer questions about an opinion he gave to Care Health Insurance. When this drew strong protests from the legal fraternity, the ED withdrew it. About a week later, it summoned Pratap Venugopal, another senior advocate. This raises pressing questions about the professional autonomy of legal counsel: can a lawyer be summoned merely for giving advice, without any allegation of collusion? The core legal issue Even incorrect legal advice cannot justify summoning an advocate unless there is prima facie evidence of conspiracy. This is not merely about courtesy; it is foundational to the rule of law. Under the Bharatiya Sakshya Adhiniyam (BSA), 2023, which replaced the Indian Evidence Act, 1872, communications between legal advisers and their clients are privileged. Section 132 of the BSA protects advocates from being compelled to disclose confidential communications except with the express consent of the client. In this case, there has been no suggestion, even obliquely, of any inducement or involvement of the senior advocate in the ESOPs issue. Issuing a summons then is not only unwarranted but a misuse of statutory powers. The right to counsel is hollow if lawyers can be dragged into investigations merely for having advised a client. The chilling effect is obvious: few will offer candid advice, especially on sensitive matters. The Bar Council of India's Rules under the Advocates Act, 1961, say advocates must advise in accordance with the law, without fear or favour. The privilege protecting this function is not personal indulgence; it safeguards the administration of justice. The summons, even if swiftly retracted, reveal growing unease within the legal fraternity about the creeping encroachment of executive agencies into domains that must remain insulated from investigative whim. At stake is not simply the dignity of particular lawyers, but the institutional equilibrium between the Bar, the bench, and the executive. In a constitutional democracy, the independence of the legal profession is not merely aspirational; it is structural. Advocates have a duty both to court and to clients. Summoning advocates who have rendered advice, without any allegation of fraud or complicity, seriously undermines that independence. The strongest rebukes came from the legal fraternity. Bar associations saw this not as an isolated procedural misstep, but as a threat to the integrity of the profession. Today, it is a senior advocate in a corporate context. Tomorrow, it could be a criminal defence lawyer being asked why he advised silence. Courts have consistently held that advocates must be protected from harassment for discharging professional duties. Wrong legal advice is not evidence of culpability. In the absence of specific statutory override, investigative agencies must respect the boundary between legal advice and culpable conduct. Those who serve the law should never be made to fear it. Yet, the present trend portends just that. If the act of rendering legal advice, particularly in commercial, regulatory, or politically sensitive contexts, invites investigative scrutiny, the deterrent effect on candid legal counsel will be profound. At one level, the damage is psychological: it sows doubt about whether lawyers can safely advise on matters involving statutory discretion or executive action. At another, it encourages self-censorship, deterring independent counsel from cases where that advice may later be questioned not in court, but by an investigative agency. This has consequences for corporate governance, criminal defence, constitutional challenges, and public interest litigation. Over time, the class of advocates willing to act without deference to political or prosecutorial power will shrink. That will weaken not just the Bar, but the rule of law itself. What would remain is a profession that is either silent or pliant. That is not a Bar worthy of a constitutional democracy. Call for restraint and reform This episode compels a systemic reassertion of the boundaries between legal counsel and executive investigation, especially under coercive statutes such as the Prevention of Money Laundering Act, 2002. There is an urgent need for judicial clarification — possibly through a declaratory ruling — affirming that lawyers cannot be summoned merely for professional advice, without evidence of unlawful complicity. Such a ruling must reaffirm what is implicit in the constitutional architecture: that legal counsel is protected expression and its downstream use does not make the adviser an accomplice. Bar Councils too must act. They must assert the Bar's privileges and engage with investigative agencies institutionally to prevent recurrence. Silence will likely be read as acquiescence. Parliament may consider statutory reinforcement of advocate-client privilege, recognising that a lawyer's role is not inherently suspect, even when misused by a client. Without this, every opinion on a controversial matter may be under the shadow of future suspicion. The ED may have misread the law. But its decision to withdraw the summons after an outcry revealed that it may still choose to test the limits of professional tolerance. The legal community must draw a line — clearly, constitutionally, unhesitatingly. Rajasekhar V.K., practising advocate and a former judicial member of the National Company Law Tribunal
Mint
4 days ago
- Business
- Mint
Mint Explainer: Why ED's summons to top lawyers in stock options case sparked a legal firestorm
The Directorate of Enforcement's recent summons to senior advocate Arvind Datar and advocate Pratap Venugopal in connection with its investigation into stock options granted to former Religare Enterprises chairperson Rashmi Saluja sparked deep concerns within India's legal community. Though the ED withdrew the notices after mounting criticism and backlash, the episode has reignited the debate on the sanctity of attorney-client privilege, the independence of legal advice, and the limits of investigative overreach. Mint explains the controversy, the key legal flashpoints, and the broader implications for lawyer-client confidentiality in high-stakes corporate investigations. What is the case about? From 2021 to 2023, Care Health Insurance, a subsidiary of Religare Enterprises Ltd, granted 22.71 million stock options valued at over ₹250 crore to Rashmi Saluja, who was the non-executive chairperson of Care and executive chairperson of Religare. This violated the insurance regulator's 2018 circular capping the remuneration of non-executive directors at ₹10 lakh, unless prior approval was secured. Even after specific instructions from the regulator in May 2022 not to proceed without approval, Care went ahead. Also Read | What next for the Burmans now that they have won the battle for Religare In November 2023, the regulator found Care to be in breach of compensation norms, ordered the cancellation of unvested/unexercised stock options, and directed the buyback of 7.57 million shares already allotted to Saluja at ₹45.32 per share. A ₹1 crore penalty followed in July 2024. The Mumbai Police's Economic Offences Wing filed a complaint, prompting the ED to initiate a money laundering probe. In August 2024, the agency conducted search operations and froze the disputed shares, examining whether they were used to facilitate broader financial misconduct. Why were the senior lawyers summoned? As part of the probe, the ED examined how Care Health justified the stock options despite regulatory red flags. The company had relied on legal advice from senior counsel Arvind Datar and former Insurance Regulatory and Development Authority of India chairperson J. Hari Narayan. Pratap Venugopal, who filed one of the legal opinions, was also summoned. The summons was issued to Datar on 12 June and to Venugopal on 19 June, asking for records of their legal advice, communications, and fee/payment details. Datar is a senior advocate of the Supreme Court known for high-stakes commercial, tax and regulatory litigation, including regular appearances for the Securities and Exchange Board of India. Venugopal has been a designated senior advocate since 31 January 2025 and formerly a founding partner at K.J. John & Co. Why did the ED withdraw the summons? Facing widespread criticism, the ED clarified that the lawyers were not accused and were summoned to assist in understanding the legal rationale behind awarding the stock options. However, Datar refused to appear, citing protections under Section 132 of the Bharatiya Sakshya Adhiniyam, 2023, which bars compelled disclosure of privileged legal communication. With pressure mounting from top bar associations, the ED withdrew the summons—first to Datar on 14 June and then to Venugopal on 20 June. Later that day, the ED issued a circular clarifying that no such summons can be issued without prior approval. Also Read | Rahul Navin appointed as new director of Enforcement Directorate for two years 'No summons shall be issued to any advocate in violation of Section 132 of the BSA, 2023. Further, if any summon needs to be issued under the exceptions carved out in the proviso to Section 132... the same shall be issued with the prior approval of the Director, ED." The circular acknowledged that some field units had summoned advocates during investigations to produce communications and documents—actions that risk infringing upon legal privilege. How did the legal fraternity respond? The ED's summons to senior advocates in the Care Health–Religare case sparked strong condemnation from India's leading bar associations, which viewed it as an attack on the independence of the legal profession and the sanctity of client-lawyer privilege. 'This action by the ED is not only unwarranted but reflects a disturbing trend of investigative overreach that undermines the very foundation of the rule of law," the Supreme Court Advocates-on-Record Association said in a 16 June statement. It stressed that Datar, a senior member of the bar, had consistently upheld the highest standards of legal ethics. The Bombay Bar Association termed the summons a 'direct attack on the legal community as a whole." It cautioned that such actions—even if withdrawn—could have a chilling effect on advocates engaged in complex corporate cases. The Delhi High Court Bar Association, in its 18 June resolution, called the move a breach of legal sanctity and said, 'If legal opinions are treated as evidence of complicity, no lawyer will ever be able to advise a client without fear." The bar warned that summoning lawyers over opinions rendered in good faith sets a dangerous precedent. Why does this controversy raise deeper concerns? Legal experts said the episode could alter how legal advice is given in sensitive regulatory and corporate matters. 'Encroaching on the confidentiality of legal opinions in high-profile corporate cases could undermine the trust essential for effective legal defence and advice," said Yatharth Rohila, advocate and partner at Aeddhaas Legal. 'This could discourage companies and their legal counsel from seeking or providing candid opinions, fearing exposure or misuse." Also Read | Mint Explainer: Why did Sebi issue notice to Rashmi Saluja, Religare board? 'This development may influence how lawyers approach such matters. While statutes provide protection, the prospect of being summoned could affect the dynamics of legal consultation," noted Himanshu Vidhani, a partner at Chandhiok & Mahajan. Alay Razvi, managing partner at Accord Juris, added that even if legal opinions themselves aren't sought, demands for details such as dates, payments or communications can still strike at the heart of legal privilege. The ED has broad powers but using them against legal professionals without clear allegations raises serious concerns, he said. What are the legal protections for lawyer-client privilege in India? Indian law strongly protects lawyer-client confidentiality under Sections 126-129 of the Indian Evidence Act, 1872, and the Bharatiya Sakshya Adhiniyam, 2023. Advocates cannot disclose client communications, legal advice or confidential documents. This protection extends to legal staff and remains intact even if the client testifies. However, privilege does not apply if the communication furthers a crime or fraud, is shared with third parties, is waived by the client, or relates to disputes between lawyer and client.
