Supreme Court: While considering this reference made by a Division Bench of the Court in a Special Leave Petition filed against notice issued against an Advocate under Section 179 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the 3-Judge Bench of B.R. Gavai, CJI., K. Vinod Chandran* and N.V. Anjaria, JJ., issued the following directions to ensure that the Client-Advocate privilege is not impinged upon by valiant investigators or overzealous parties to a litigation, purely on the basis of the interpretation of the evidentiary rules codified:
1. Section 132 of the Bhartiya Sakshya Adhiniyam, 2023 (BSA) is a privilege conferred on the client, obliging an Advocate not to disclose any professional communications, made in confidence, which privilege, in the absence of the client can be invoked by the Advocate on behalf of the client.
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The Investigating Officers in a criminal case or a Station House Officer conducting a preliminary inquiry in a cognizable offence shall not issue a summons to an Advocate who represents the accused to know the details of the case, unless it is covered under any of the exceptions under Section 132.
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When a summons is so issued to an Advocate, under any of the exceptions, it shall explicitly specify the facts on which the exception is sought to be relied upon, which shall also be with the consent of the superior Officer not below the rank of a Superintendent of Police who shall record his satisfaction as to the exception in writing, before the summons is issued.
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A summons so issued shall be subject to judicial review at the instance of the Advocate or the client under Section 528 of the BNSS.
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The Advocate on whom there is an obligation of non-disclosure as per Section 132 of the BSA shall be one who is engaged in a litigation or in a non-litigious or a pre-litigation matter.
2. Production of documents in the possession of the Advocate or the client will not be covered under the privilege conferred by Section 132, either in a civil case or a criminal case.
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In a criminal case, the production of a document directed by a Court or an Officer shall be complied with by production before the Court under Section 94 of the BNSS; being regulated also by Section 165 of the BSA.
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In a civil case, the production of a document shall be regulated by Section 165 of BSA and Order XVI Rule 7 of the Civil Procedure Code.
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On production of such document, it shall be upon the Court to decide on any objection filed with respect to the order to produce, and the admissibility of the document, after hearing the Advocate and the party whom the Advocate represents.
3. The production of a digital device under Section 94 of the BNSS if directed by an Investigating Officer, the direction shall only be to produce it before the Jurisdictional Court.
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On production of the digital device by the Advocate before the Court; the Court shall issue notice to the party with respect to whom the details are sought to be discovered from the digital device and hear the party and the Advocate on any objection regarding the production of the digital device, discovery from it and the admissibility of that discovered.
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If the objections are overruled by the Court, then the digital device shall be opened only in the presence of the party and the Advocate, who will be enabled due assistance of a person with expertise in digital technology, of their choice.
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While examining the digital device, care shall be taken by the Court not to impair the confidentiality with respect to the other clients of the Advocate and the discovery shall be confined to that sought by the Investigating Officer, if it is found to be permissible and admissible.
4. In-house counsel will not be entitled to the privilege under Section 132 since they are not Advocates practicing in Courts as spoken of in the BSA.
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The In-house counsel, however, would be entitled to the protection under Section 134 insofar as any communication made to the legal advisor of his employer, which however, cannot be claimed for the communications between the employer and the In-house counsel.
Background:
The above matter arose out of a reference made by the Division Bench in a SLP filed against a notice issued against an Advocate under Section 179 of the BNSS. Pursuant to an agreement relating to a loan and its breach, an FIR was lodged at the Odhav Police Station, Ahmedabad, Gujarat under various provisions of the BNSS read with the provisions of the Gujarat Money-Lenders Act, 2011 and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused was arrested, and the petitioner Advocate, filed a regular bail application for the accused which was allowed.
Subsequently, the impugned notice was issued, wherein after referring to the complaint, the Assistant Commissioner of Police, Ahmedabad, the Investigating Officer, directed the appearance of the Advocate within three days from the date of receipt of notice so as to ‘know true details of the facts and circumstances after making your inquiry’. The petitioner Advocate moved to Gujarat High Court which rejected the application on the ground that the petitioner did not respond to the summons and his non-cooperation resulted in the investigation being stalled. It was opined that there was no violation of fundamental rights, since the summons was served under Section 179 of the BNSS in the capacity of a witness by an officer conferred with the power to investigate.
When the matter reached the Supreme Court, the Division Bench formulated the following questions of utmost importance:
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When an individual has the association with a case only as a lawyer advising the party, could the Investigating Agency/Prosecuting Agency/Police directly summon the lawyer for questioning?
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Assuming that the Investigating Agency/ Prosecuting Agency/Police has 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 judicial oversight be prescribed for those exceptional criterion of cases?
During the hearing of this matter before the present Bench, several intervention applications were filed raising serious issues on interference with the right to practice, conferred on the Advocates under Article 19(1)(g) and Article 21 of the Constitution and Advocates Act, 1961; interference with the obligation of non-disclosure of facts and circumstances pertaining to an alleged crime, by an Advocate representing the accused being against the statutory protection conferred on the client. Serious concerns were also raised on the backdrop of the Enforcement Directorate (ED) having issued summons against two Senior Advocates of the Supreme Court. The ED subsequently withdrew the summons and issued guidelines specifically referring to the BNSS, mandating that any summons issued under the exceptions carved out in Section 132 shall be only issued with the prior approval of the Director, ED.
Court’s Assessment:
Perusing the issues and concerns raised by the parties and the questions framed by the Division Bench, the Court invoked William Shakespeare’s Henry VI pt. II scene 2 Act IV, “The first thing we do, let’s kill all the lawyers”. The Court stated that onerous responsibility is cast on a lawyer who takes up an engagement to plead or defend, on behalf of a client. There is an obligation cast on him to provide his client the maximum protection as by law established, in furtherance of the client’s cause. It is hence the codified obligation, while maintaining absolute sincerity to the cause of justice, ensuring strict and absolute confidentiality with the communications made by his client regarding the cause, for which he is engaged.
The Court stated that Sections 132 to 134 has been incorporated in the BSA, not only in protection of the client but also to provide an immunity to the Advocate from making any such disclosure. On Advocate-Client privilege, the Court pointed out that the BSA provisions and illustrations though not exhaustive, are indicative of the instances when the transactions between the client and his lawyer would not come within the privilege of professional communication as has been protected under Section 132. The Court stated that an Advocate cannot be coerced into revealing any information with respect to the client he represents or the cause he is engaged to prosecute or defend, which would be in violation of Section 132. The Court explained that exceptions under Section 132 are clear and operates only where there is (i) waiver/consent of the client; (ii) furthering of an illegal purpose or (iii) observation of a crime or fraud committed in the course of his engagement; whether it be noticed at the instance of the client or otherwise. The privilege though is conferred on the client, there is an immunity enabled to the Advocate from making any disclosure of such privileged communication, which he can seek to invoke and exercise, even in the absence of his client, which would be primarily in protection of the interests of his client. The complicity to the crime even if admitted by the accused to his lawyer, it does not fall within the genre of an ‘extra-judicial confession’.
“When a person cannot incriminate himself, he cannot be prejudiced or incriminated by the statement of his counsel, only on the basis of the professional communications he had with his counsel, in confidence”.
The Court explained that the power of the police officer to investigate a cognizable offence, as provided under Section 175 BNSS, even without the order of a Magistrate, cannot be regulated by any guideline issued by the Court, especially when sufficient guideline is available, under Sections 132 to 134 of the BSA. A police officer issuing summons to an Advocate, under Section 179, would be cautioned by the provisions of Section 132 in not expecting any disclosure of a privileged communication.
The Court further stated that the position of trust the Advocate occupies vis-à-vis his client cannot be put to test by an attempt to breach the professional confidence, conferred with a solemn privilege under Section 132; which has reflections of the constitutional protection against self-incrimination. It was clarified that whether the summons issued falls under any of the exceptions as provided under Section 132 has to be explicitly stated if a summons is issued to the Advocate on any of the exceptions; which is not an empty formality and hence, when supported by reasons, amenable to judicial review.
Answers to the Referred Questions:
Answering the Question (i) referred by the Division Bench, the Court said that the investigating agency/prosecuting agency/the police cannot directly summon a lawyer appearing in a case to elicit the details of the case, unless there is something, the I.O has knowledge of, which falls under the exceptions, in which case it has to be specifically mentioned in the summons, which the lawyer summoned can challenge under Section 528 of the BNSS. The Court clarified that any such summons issued as against a lawyer by an I.O has to be with the approval and satisfaction of the hierarchical Superior, not below the rank of a Superintendent of Police which satisfaction has to be recorded in writing and should mention the facts leading to the exception under Section 132.
Answering Question (ii), the Court opined that sufficient judicial oversight is prescribed under Section 528 of the BNSS. The Court explained that the power to summon, conferred on an Investigating Officer under Section 179 read with Section 175 of the BNSS when directed against an Advocate in a case where he is appearing for a party, then such power is not an absolute or a blanket power to be exercised, without looking at the provisions of Section 132 of the BSA. If there is an overreach, the Constitutional Courts could always be approached as has been done in the present case.
“The power to summon under Section 175 & 179 is not the power to interfere with the privileged communications between a lawyer and client, as long as the Constitutional Courts sit, in this Country”.
Decision and Conclusion:
The Court held the summons issued to the petitioner Advocate by Assistant Commissioner of Police, Ahmedabad, to be illegal and against the provisions of Section 132 insofar as the Advocate had been summoned to know the true details of the facts and circumstances of the case in which he appears for the accused. “We are surprised that the High Court, being a Constitutional Court, exercising the jurisdiction under Section 528 of the BNSS refused to interfere with the same”.
On a broad conspectus of the Client-Advocate privilege as codified in Section 132 to 134 of the BSA, the Court was not persuaded to lay down any guidelines and to constitute a committee of legal professionals; however, the Court issued the afore-stated directions covering the issues raised by the parties and in the reference.
The Court further cautioned the gallant Investigating Officers from transgressing impulsively, the privilege under Section 132, which could result in violating the statutory provision and more importantly result in the infringement of the fundamental rights guaranteed to the person whom the Advocate represents.
[Summoning Advocates who give legal opinion or represent parties during investigation of cases and related issues, In Re, Suo Motu Writ Petition (Criminal) No.2 of 2025, decided on 31-10-2025]
*Judgment by Justice K. Vinod Chandran
Advocates who appeared in this case:
Mr. Vikas Singh, learned Senior Counsel & President, Supreme Court Bar Association, Mr. Atmaram N.S. Nadkarni, Senior Counsel instructed by Mr. Vipin Nair, President, SCAORA; Senior Counsel: Mr. Siddharth Luthra, Mr. Shoeb Alam; Mr. R. Venkataramani, Attorney General of India and Mr. Tushar Mehta, Solicitor General of India
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