“Lawyers Merely Giving Legal Opinion To Clients Who Are Under Probe Should Not Be Summoned By Agencies”: SC

Supreme Court of India

The Supreme Court on Tuesday made it clear that lawyers cannot be summoned by investigative agencies solely for giving legal advice to clients under probe.

However, if it is shown that a lawyer actively assisted in a crime, they may be questioned.

A bench of Chief Justice B R Gavai and Justice K Vinod Chandran, hearing a suo motu case on the frequent summoning of lawyers by enforcement agencies, said, “If a lawyer is only acting in their professional capacity, they can’t be summoned. But if they’re aiding the commission of a crime, they are not immune.”

Bar Bodies Raise Red Flags

The court was hearing submissions from the Supreme Court Bar Association (SCBA) and Supreme Court Advocates-on-Record Association (SCAoRA). SCBA President Vikas Singh warned of a “chilling effect” on the legal profession due to arbitrary summons. He proposed that summoning a lawyer should require approval from a Superintendent of Police and review by a magistrate.

The bench appeared open to the idea of judicial oversight to prevent overreach.

ED Agrees, But With Caveats

Solicitor General Tushar Mehta, appearing for the Enforcement Directorate (ED), agreed that mere legal counsel shouldn’t lead to a summons. He stressed the sanctity of lawyer-client privilege, but cautioned against rules that might create inequality.

“A rule requiring magistrate approval only for lawyers, not others, may violate Article 14 of the Constitution,” Mehta noted. He also assured the court that future summons would require the ED Director’s personal clearance to prevent misuse.

Notable Lawyers Caught In The Net

The court referred to recent ED summons issued to senior advocates Arvind Datar and Pratap Venugopal, which were later withdrawn. Senior advocates Mukul Rohatgi, Sidharth Luthra, and Shoeb Alam raised concerns about in-house counsels, fees paid unknowingly from alleged crime proceeds, and the freezing of law firm accounts.

One lawyer argued, “If we are made to explain our legal advice, it amounts to self-incrimination.”

ED Circular & Legal Safeguards

On June 20, the ED issued a circular directing that no summons be issued to advocates in money laundering cases without prior approval from the Director. It cited Section 132 of the Bhartiya Sakshya Adhiniyam (2023), which protects lawyer-client communication.

Still, bar bodies called this a “disturbing trend” that struck at the foundations of the legal profession, prompting the Supreme Court to take suo motu cognisance.

The bench directed the SCBA and SCAoRA to submit written suggestions to the Solicitor General and Attorney General within three days. The case will be heard next on August 12, when the Centre is expected to respond.

Earlier, the court had pulled up the ED, stating that it was “crossing all limits” by summoning lawyers for doing their job. “Client communication is privileged—how can lawyers be summoned just for offering advice?” the CJI had asked, stressing the need for formal guidelines.