THE SUPREME COURT HAS initiated suo motu proceedings over law enforcement agencies summoning lawyers for giving advice or representing litigants in cases where investigation is on.
A three-judge Bench comprising Chief Justice of India B.R. Gavai and Justices K. Vinod Chandran and N.V. Anjaria will hear the suo motu case on July 14, the day the Supreme Court reopens after summer break.
This follows the Enforcement Directorate’s summoning of two senior advocates, although the summonses were later cancelled.
Last month, a division Bench comprising Justices K.V. Viswanathan and Nongmeikapam Kotiswar Singh observed that allowing investigation agencies to summon lawyers, who advise litigants in a given case, constitutes a direct threat to the independence of the administration of justice.
The Bench had stayed a summons issued to a Gujarat-based lawyer.
The Bench has framed two issues for comprehensive determination:
(i) 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?
(ii) 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?
The Bench noted that these issues required to be addressed because what is at stake is the efficacy of the administration of justice and the capacity of the lawyers to conscientiously and fearlessly discharge their professional duties.
The Supreme Court Bar Association (‘SCBA’), the Supreme Court Advocate-on-Record Association (‘SCAORA’), Delhi High Court Bar Association (‘DHCBA’), Bombay Bar Association (‘BBA’) and many other bar bodies had condemned the ED for summoning senior advocates Arvind Datar and Pratap Venugopal in connection to ongoing money laundering investigations under the PMLA.
President of SCAORA Vipin Nair had also written to CJI Gavai urging him to take suo motu action against the ED.
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.
Section 132 of the BSA, 2023 protects attorney-client privilege. It provides as follow:
“132. Professional communications.
(1)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:
Provided that nothing in this section shall protect from disclosure of-(a) any such communication made in furtherance of any illegal purpose;(b) any fact observed by any advocate, in the course of his service as such, showing that any crime or fraud has been committed since the commencement of his service.(2)It is immaterial whether the attention of such advocate referred to in the proviso to sub-section (1), was or was not directed to such fact by or on behalf of his client.”