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Indian Express
3 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
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.'
The Print
21-06-2025
- Business
- The Print
ED takes lesson from Datar & Venugopal episodes, director's nod now must to summon advocates
The move followed strong condemnation by several associations of lawyers of the ED summons issued to two senior advocates in connection with a money-laundering probe. New Delhi: The Enforcement Directorate (ED) Friday issued a circular to its officers instructing them not to summon any advocate as part of the investigation, as it could amount to a violation of the Bharatiya Sakshya Adhiniyam (BSA). The ED circular, a copy of which has been seen by ThePrint, further said that, in exceptional circumstances, when summons have to be issued, it can only be done after the approval of the agency director. From Section 132, 'it is amply clear that a legal practitioner cannot be compelled to disclose any communication made to him in the course and for the purpose of his professional service as such legal practitioner, by or on behalf of his client unless with his client's express consent. However, proviso to Section 132 of the BSA, 2023 has carved out certain exceptions,' said the circular issued by ED's legal wing to field officers. 'In view of the above, it is directed that no summons shall be issued to any advocate in violation of Section 132. Further, if any summon needs to be issued under the exceptions carved out in proviso to Section 132 of the BSA, the same shall be issued with the prior approval of the Director, ED,' it added. The development comes at a time when the ED has drawn criticism from the legal community over summoning senior advocates Arvind Datar and Pratap Venugopal in its probe into dealings of Care Health Insurance (CHIL) and its parent company, Religare Enterprises (REL). Both summonses have been withdrawn. In a letter dated 16 June, the Supreme Court Advocates-on-Record Association expressed 'strong disapproval' of the summons to Datar and said it reflected 'a disturbing trend of investigative overreach'. ThePrint had earlier reported that the ED has been probing money laundering allegations against these firms, including the transfer of shares worth crores to former CHIL non-executive chairperson and REL executive chairperson Rashmi Saluja despite the request being rejected by the Insurance Regulatory and Development Authority of India (IRDAI). The former board of CHIL cited an opinion that it had sought from Datar to grant shares to Saluja. According to the ED, Datar said IRDAI's approval was not needed since the shares were being granted in her capacity as an REL employee, and not CHIL. Separately, Venugopal was summoned in his capacity as the former independent director of CHIL to understand the circumstances behind the share transfer, the ED spokesperson said. In a statement Friday, the ED spokesperson 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.' (Edited by Sanya Mathur) Also Read: ED's now-withdrawn summons to Arvind Datar: The case, controversy & SC advocates body letter
