Latest news with #BharatiyaSakshyaAdhiniyam
Time of India
3 days ago
- Politics
- Time of India
SC agrees with petitioner on attorney-client privilege
NEW DELHI: The , which on Wednesday stayed Gujarat police SC/ST cell's notice to the advocate of an accused to appear as a witness, framed two preliminary questions: "When an individual is associated with a case only as a lawyer advising the parties, would the investigating agency/prosecuting agency/police directly summon the lawyer for questioning? Assuming that the probe agency/police have a case that the role of the individual is not merely as a lawyer but something more, even then, should they be directly permitted to summon, or should there be a judicial oversight be prescribed?" Advocate Siddharth S Dave, appearing for the lawyer who was summoned by Gujarat police, told the court that the lawyer was only discharging his professional duty by appearing for the accused and was in no way involved with the offence alleged against his client. Tired of too many ads? go ad free now "The communication between the lawyer and his client is protected against disclosure by Section 132 of Bharatiya Sakshya Adhiniyam and, hence, police cannot inquire into the communication nor can the advocate be summoned even as a witness," Dave said. The bench agreed and said, "Legal profession is an integral part of administration of justice. Lawyers have certain rights and privileges guaranteed by statute because of the nature of their profession." "Permitting investigating agencies/police to directly summon defence counsel or advocates, for the advice rendered by them to a client or an accused, will seriously undermine their autonomy and could even constitute a threat to the independence of administration of justice," the Supreme Court bench further added.
The Hindu
3 days ago
- Politics
- The Hindu
Is the ED Undermining the Constitution by Targeting Lawyers?
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 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.
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
The Hindu
5 days ago
- Politics
- The Hindu
Bombay Bar Association slams ED summons to senior advocates, warns of legal action
In a sharply worded statement, the Bombay Bar Association (BBA) has condemned the issuance of summons by the Enforcement Directorate (ED) to two prominent Senior Advocates, Arvind Datar and Pratap Venugopal — in connection with an ongoing money laundering investigation. Although the summons has since been withdrawn, the Association said the act itself represents a direct affront to the legal profession and the rule of law. Calling the move 'a direct attack on the legal community as a whole,' the BBA said the incident has 'shocked the collective conscience' of lawyers across India. The Association expressed grave concern over what it views as a misuse of power by the investigative agency, warning that such actions risk setting a dangerous precedent for the intimidation of advocates performing their professional duties. 'Advocates accept any professional assignment on the basis that during the course of such professional work, they would not have to face intimidation or threats of any kind,' the statement read. It added that the rule of law cannot be preserved if advocates feel threatened merely by representing clients. The Association underlined that the powers of the ED, while statutory, must be exercised within the legal framework of the country, which includes protections enshrined in the Bharatiya Sakshya Adhiniyam, 2023 — particularly provisions safeguarding professional and confidential communication between advocates and their clients. The BBA also linked the issue to broader constitutional values, noting that any interference with the legal profession undermines fundamental rights, including the right to a fair trial and legal aid under Article 21 of the Constitution. 'Any attack on an Advocate, direct or indirect, has the consequence of destroying these constitutional ideals — a situation which is antithetical to the rule of law in a democratic country like India,' the statement said. In a pointed remark, the Association said: 'Surely, this is not the Amrit Kaal,which we want to see,' adding that 'lessons in Constitutional law are required to be taught in law colleges only and not to officers of investigative agencies, on a daily basis by the respected Constitutional Courts.' Pledging full support to any legal professional targeted by overreach from investigative agencies, the Association stated that it will 'leave no stone unturned' in defending the independence and dignity of the legal profession. It also indicated its readiness to initiate legal proceedings before High Courts or the Supreme Court of India, if necessary. 'The right to practice the legal profession is a fundamental right,' the BBA emphasised, 'and we shall not hesitate to take every legal step to preserve and protect it.' The ED issued summons to the advocates during its probe into the grant of ₹250 crore worth of Employee Stock Option Plans (ESOPs) by Care Health Insurance to former Religare chairperson Rashmi Saluja. Mr. Datar had provided legal opinion on the ESOPs, while Mr. Venugopal was the advocate-on-Record. Following the backlash from legal bodies, the ED withdrew the summons and issued a directive barring such notices to advocates without prior approval from its Director, in line with Section 132 of the Bharatiya Sakshya Adhiniyam, 2023. The June 20, 2025, statement issued by the ED said, 'In view of the fact that Shri Pratap Venugopal is a Senior Advocate in the Hon'ble Supreme Court, the summons issued to him has been withdrawn and same has been communicated to him. In the said communication, it has also been stated that if any documents will be required from him in his capacity as an Independent Director of CHIL, the same will be requested from him to be submitted by email.' The statement further said that the ED has also issued a Circular for the guidance of the field formations that no summons shall be issued to any advocate in violation of Section 132 of the Bhartiya Sakshya Adhiniyam, 2023. 'Further if any summons needs to be issued under the exceptions carved out in proviso to section 132 of the BSA, 2023, the same shall be issued only with the prior approval of the Director, ED.'
