IN A JUDGMENT DELIVERED ON FRIDAY the Supreme Court has provided certain safeguards and clarifications regarding the summoning of lawyers representing the accused to ascertain the details of the case. A Bench comprising Chief Justice of India (‘CJI’) B.R. Gavai and Justices K. Vinod Chandran and N.V. Anjaria issued a slew of directions to this effect.
The Bench stated that summons could be issued to a lawyer only where there is (i) waiver/consent by 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.
These exceptions are codified in the proviso to Section 132 of the Bharatiya Sakshya Adhiniyam (‘BSA’), 2023.
The Bench also held that ‘in-house’ counsel would not be entitled to the privilege under Section 132 since they are not advocates practising in courts. But they would be entitled to the protection under Section 134 of the BSA insofar as any communication made to the legal adviser of his employer; this, however, cannot be claimed for communications between the employer and the in-house counsel.
The safeguard, which the Bench has introduced, is that a summons must have the consent of a superior officer not below the rank of a Superintendent of Police (‘SP’), who would record his satisfaction as to the exception in writing before the summons is issued.
In addition, the summons so issued must explicitly specify the facts on which the exception is sought to be relied upon.
Importantly, the Bench also cited with approval the decision from United Kingdom in Greenough (1883) which held that the confidentiality of the professional communications is not confined to transactions with an advocate engaged in a case but also extends to legal advice taken, at a solitary instance, sporadically, on a periodic basis or even under a regular retainership.
The Bench, however, rejected the request for the formation of a committee of legal professionals or for enabling the summons to be issued through a Magistrate. The Bench opined that it would be contrary to the provisions of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. The Bench also observed that there is no judicial (sic) vacuum requiring it to step in and frame guidelines.
Section 132 of the BSA provides that “no Advocate shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his service as such Advocate by or on behalf of his client, or 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 service, or to disclose any advice given by him to his client in the course and for the purpose of such service”.
The section has two provisos, that is, exceptions. Firstly, any communication made in furtherance of an illegal purpose and, secondly, 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 can also be waived with the consent of the client. This is mentioned in the main provision itself. Section 179 of the BNSS confers power on the police officer to issue summons requiring the attendance of witnesses. It is this power which is invoked by the investigating officer to issue summons to the advocate.
‘Court right in not venturing into framing guidelines’
Speaking to The Leaflet, the President of Supreme Court Advocate-on-Record Association (‘SCAORA’) Vipin Nair said the Supreme Court’s latest judgment would surely act as a timely deterrent to the ‘chilling effect’ that a summoning notice of the ED would have on a lawyer.
“The fact that the suo motu proceedings were initiated by CJI Gavai acting on SCAORA’s representation is a matter of great satisfaction. The judgment has far-reaching implications for the future and its implementation will be watched very keenly by all stakeholders,” Nair added.
Senior advocate Anand Grover, who is also co-founder of The Leaflet, opined that the judgment is well written and correct.
“It has correctly stated the law prevalent in India. The court is right in not venturing into framing guidelines. The experience in Vishaka has shown that it creates more confusion when court tries to legislate”, Grover said.
Grover added that the judgment has taken care of the apprehension by ensuring that notice can only be issued to lawyer if the exception to Section 132 is made out; it is vetted by a superior officer; which order is judicially reviewable.
What was argued before the court?
The petitioners and intervenors, which include the Supreme Court Bar Association (‘SCBA’) and SCAORA, urged the court to issue guidelines setting up a special procedure involving the courts and a peer group of professionals to determine whether the summons in a given case falls within the scope and ambit of the exceptions carved out in the proviso to Section 132.
They argued that the committee should be constituted at three levels—at the district, the state and the national level—with the involvement, respectively, of the Principal District Judge, the Chief Justice of the High Court and the Chief Justice of India. Thus, only after consent is obtained from the superior officer should an application be made before the concerned Magistrate, with the further requirement of consent being taken from a committee, both of whom would have to be satisfied prima facie, on the basis of the materials produced by the investigating officer, as to the issuance of such summons to an advocate appearing for the accused/litigant in a case.
In support, they cited two judgments of the Supreme Court: Jacob Mathew v. State of Punjab (2005) and Vishaka v. State of Rajasthan (1997).
Jacob Mathew was a case concerning medical negligence. The Supreme Court had ordered that a private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.
It was also directed that the investigating officer should, before proceeding against the doctor accused of a rash or negligent act or omission, obtain an independent and competent medical opinion, preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion. And that a doctor accused of rashness or negligence may not be arrested in a routine manner (simply because a charge has been levelled against him).
In Jacob Mathew, the court had clarified that it should not be understood to say that doctors could never be prosecuted for an offence of which rashness or negligence is an essential ingredient. The court was concerned with protecting doctors from frivolous or unjust prosecutions.
In Vishaka, as is widely known, the Supreme Court issued binding directions under Article 142 of the Constitution to deal with complaints of sexual harassment at the workplace.
The Attorney General for India and the Solicitor General argued against any issuance of guidelines and a committee to examine whether, in a given case, summons should be issued to a lawyer. They submitted that the issue is fully and squarely covered by the statutory provisions, which require no elaboration. They cautioned that any guideline brought in would only result in disrupting the well-crafted legislative provision which has withstood the test of time in this country, right from the time of the Indian Evidence Act, 1872.
Bench’s reasoning
The Bench found that the decisions in Jacob Mathew and Vishaka were not relevant to the issue of an advocate being summoned. The Bench stated that the present case does not concern professional misconduct, and the controversy is only with respect to an advocate summoned to speak about a crime or his client when the communications pursuant to a legal engagement are conferred with a privilege of non-disclosure under Section 132 of the BSA.
The Bench added that there was no parallel between the present case and Jacob Mathew. Moreover, the Bench pointed out that even in Jacob Mathew, doctors are not conferred any blanket immunity from criminal prosecution when rashness or negligence is proved beyond reasonable doubt.
Distinguishing the Vishaka case, the Bench held that it was a class action focusing attention on the societal abrasion of sexual harassment of women in the workplace. It added that it was a case to bring in safeguards by a mechanism in the absence of legislative measures.
The Bench arrived at the conclusion that, considering the context in which the court issued guidelines in Jacob Mathew and Vishaka, present is not similar or identical fact situations for which no legal remedy is available.
“We do not think that the positive judicial activism that was prompted, treating women in general and working women in particular as a class, to avoid any sort of sexual harassment in workplaces would, with the same gravity, be applicable in the present case nor is there a judicial vacuum requiring us to step in. Jacob Mathew also is not applicable to the instant controversy which does not bring forth any issue of professional negligence,” the Bench held.
No case for issuing guidelines
The Bench observed that it was not a fit case for issuing any guidelines for summoning a lawyer, which the court said would be, for all practical purposes, in derogation of the provisions of the BNSS.
The Bench noted that the power of the police officer to investigate a cognizable offence, as provided under Section 175 of the BNSS, even without the order of a Magistrate, couldn’t be regulated by any guideline, especially when sufficient guidelines are 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. We are not in a position of absolutely no guideline being available, which prompted this Court under Article 142 to frame guidelines in Vishaka or in a situation of absence of expertise in correlating professional negligence with criminal liability, as existed in Jacob Mathew. We are faced with a state of affairs where there is an absolute overreach in violation of the statutory mandate, which occurs by reason of deliberate design or abject ignorance, to correct which there are courts established, especially the constitutional courts,” the Bench ruled.
Production of documents and digital devices
The Bench also clarified that any summons issued by an officer in charge of a police station to a lawyer to produce documents relatable to his client can only be for production before a court of the said document, which shall be perused for the purpose of deciding on the objections raised against the direction to produce and to determine its admissibility after hearing the witness who produces it and any objection raised by the client under Section 132 of the BSA, which decision shall be by the court and not by the officer.
Insofar as the production of digital equipment is concerned, the Bench directed that the concerned court should ensure the presence of the lawyer and his client as also any person whom the lawyer or client desires to accompany them who is conversant in digital technology.
“We specifically bring in this requirement with regard to production of a digital device in court since the digital device so produced by a lawyer may contain not only the material required by the court or the officer, but also other material in relation to his other clients,” the Bench noted.
Bench castigates the Gujarat High Court
The controversy regarding the issuance of summons to a lawyer first arose after the investigating officer summoned a Gujarat lawyer. The summons was upheld by the Gujarat High Court on the ground that the petitioner did not respond to the summons and his non-cooperation resulted in the investigation being stalled.
Chiding the Gujarat High Court, the Bench expressed its surprise that the High Court, being a constitutional court exercising jurisdiction under Section 528 (inherent power) of the BNSS, refused to interfere with the same.
“We find the reasons stated—of the advocate having not responded to the summons and the investigation being stalled—to dismiss the petition, to be flawed and erroneous. It is also an abdication of the inherent powers conferred on the High Court, which the blatant breach of the rule against non-disclosure projects,” the Bench ruled.
The Bench declared the summons to be illegal and against the provisions of Section 132 insofar as the advocate has been summoned to know the true details of the facts and circumstances of the case in which he appears for the accused.
Even though the Bench refused to issue guidelines governing summoning of lawyers, it brought in certain safeguards referred to above while interpreting Section 132 of the BSA.
The suo motu case had been triggered after the Supreme Court Bar Association (SCBA), the Supreme Court Advocates-on-Record Association (‘SCAORA’), the Delhi High Court Bar Association (‘DHCBA’), the Bombay Bar Association (‘BBA’) and many other bar bodies had condemned the ED for summoning senior advocates Arvind Datar and Pratap Venugopal in connection with ongoing money laundering investigations under the Prevention of Money Laundering Act.
Faced with the backlash, the ED decided to withdraw the summons to the senior advocate. It also issued a circular stating that no summons shall be issued to any advocate in violation of Section 132 of the BSA, 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 circular stated.