TODAY, THE SUPREME COURT 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.
These observations have been recorded by a Division Bench of Justices K.V. Viswanathan and Nongmeikapam Kotiswar Singh while staying a summons issued to a Gujarat-based lawyer.
The Bench’s observations have come at a time when Bar Associations across the country have been condemning the action of the Directorate of Enforcement (‘ED’) summoning two senior advocates of the Supreme Court although the summons were later withdrawn by the agency after uproar.
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 require 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.
“This is a matter directly impinging on the administration of justice. Hence, subjecting the Counsel in a case to the beck and call of the Investigating Agency/Prosecuting Agency/Police prima facie appears to be completely untenable”, the Bench observed.
Given the importance of the issues involved, the Bench has also issued notice to Attorney General for India, the Solicitor General of India, the Chairman, Bar Council of India, the President/Executive Committee of the Supreme Court Bar Association (‘SCBA’) and the President/Executive Committee of the Supreme Court Advocates-on-Record Association (‘SCAORA’) to assist the Court in addressing these questions.
The Bench has also sent the matter to Chief Justice of India (‘CJI’) B.R. Gavai for appropriate orders as regard to the listing of the case.
The Bench was hearing a special leave petition filed by advocate Ashwinkumar Govindbhai Prajapati who is also the President of Vastral Advocates Association in Gujarat.
On June 24, 2024, an agreement was executed between one Parmar Kamleshkumar Amratlal and one Panchal Princekumar Bhavanishankar pertaining to a loan transaction. On February 13, 2025, a First Information Report (‘FIR’) was lodged at Odhav Police Station, Ahmedabad, under Sections 296(b) and 351(3) of Bharatiya Nyaya Sanhita (BNS), 2023 and Sections 40, 42(a), 42(d) and 42(e) of Gujarat Money-Lenders Act, 2011, as well as under Sections 3(2)(v), 3(2)(va) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
In this FIR, accused Panchal Princekumar Bhavanishankar was arrested on February 25, 2025. Advocate Prajapati, who is the petitioner before the Supreme Court, filed a regular bail application before the Sessions Court at Ahmedabad, which was allowed.
However, on March 24, a notice was served by the police on the petitioner (advocate) under Section 179 of the Bhartiya Nagrik Suraksha Sanhita (BNSS), 2023. This section confers power on police officers making an investigation to issue summons to a witness.
The petitioner challenged the said notice before the Gujarat High Court but the challenge was rejected noting that summon had been served under Section 179 of BNSS in the capacity of witness and the authorities had power to investigate and that there was no violation of fundamental rights of the petitioner.
Challenging the High Court order, the petitioner approached the Supreme Court which has now stated that petition raises a question of grave public importance.
Staying the summon issued to the advocate, the Bench observed the legal profession is an integral component of the process of administration of justice.
“Counsel, who are engaged in their legal practice apart from their fundamental rights under Article 19(1)(g) 4 of the Constitution of India, have certain rights and privileges guaranteed because of the fact that they are legal professionals and also due to statutory provisions like Section 132 of BSA. Permitting the Investigating Agencies/Prosecuting Agency/Police to directly summon defence counsel or Advocates, who advice parties in a given case would seriously undermine the autonomy of the legal provision and would even constitute a direct threat to the independence of the administration of justice”, the Bench said.
The Supreme Court order issued today assumes significance as very recently the SCBA, SCAORA, Delhi High Court Bar Association (‘DHCBA’), Bombay Bar Association (‘BBA’) and many other bar bodies condemned the ED for summoning senior advocates Arvind Datar and Pratap Venugopal under the Prevention of Money Laundering Case (‘PMLA’).
President of SCAORA Vipin Nair also wrote 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.”
The ED sought to clarify the summon to senior advocate Venugopal stating that it was issued to him in his capacity as an Independent Director of M/s Care Health Insurance Ltd (CHIL), to understand the circumstances under which the company had issued the Employee Stock Option Plans (‘ESOPs’) despite its rejection by Insurance Regulatory and Development Authority of India (‘IRDAI’) and subsequent discussions in the Board of CHIL in this regard.
However, no such clarification was issued with regard to the summons issued to Datar which was withdrawn by the agency. Datar had provided legal opinion on the ESOPs.