THE SUPREME COURT TODAY reserved its judgment in the suo motu case concerning the investigating agencies issuing summons to advocates over the legal advice given to their clients and indicated that it will lay down the guidelines to ensure that the independence of the legal profession and attorney–client privilege is not breached.
A Bench of Chief Justice of India BR Gavai, and Justices K Vinod Chandran and N.V. Anjaria reserved the judgment after hearing suggestions/submissions by the Attorney General for India R. Venkataramani, Solicitor General Tushar Mehta, Senior Advocate and Supreme Court Bar Association (‘SCBA’) President Vikas Singh, Supreme Court Advocates-on-Record Association (‘SCAORA’) President Vipin Nair and others.
Appearing for different Bar Associations, senior advocates Siddharth Luthra, Vijay Hansaria, Amit Desai, Ranjit Kumar and others, also made submissions.
The Bench headed by the CJI Gavai was hearing a suo motu matter - In Re: Summoning Advocates Who Give Legal Opinion or Represent Parties During Investigation of Cases and Related Issues.
One suggestion put forth by the bar associations was that a summons to an advocate should be issued only after the approval of a Judicial Magistrate.
Vikas Singh referred to the Jacob Mathew (2005) decision, where the Supreme Court had held that FIRs against doctors in medical negligence cases could be registered only after a preliminary examination by an expert committee. He suggested adopting a similar safeguard for advocates, with a magistrate exercising oversight.
However, Solicitor General Tushar Mehta opposed this, stating it would create a special protection for one class of persons, violating the principle of equality under Article 14 of the Constitution of India.
On this, CJI Gavai remarked that, going by the Solicitor General’s argument, even the Jacob Mathew judgment would be contrary to Article 14, as it laid down a special procedure for medical professionals. “Have you sought review of Jacob Mathew?” the CJI asked, to which the SG responded in the negative.
Attorney General Venkataramani also expressed reservations about magisterial oversight, cautioning that it could give a “long rope” and noting that in-house counsel and general counsel could also end up claiming the same privilege.
The Bench clarified that it is concerned only with the issue of summoning advocates for their legal opinion, and agreed with the SG’s point that no protection can be claimed by a lawyer involved in a crime.
During the hearing, Mehta said that the conduct of the lawyers across the country is not the same as the lawyers of the Supreme Court, and that the presence of criminal elements in the bar cannot be ruled out.
However, senior advocates Luthra, Hansaria and Kumar objected to this comment, with Luthra noting that he too began his career as a trial court lawyer.
Mehta also suggested that while the Court may lay down pan-India guidelines, it should keep ground realities in mind, particularly in rural areas. "My lords may lay down the law for everyone, but keeping the country scenario in mind," he said.
At the previous hearing, the SCBA, SCAORA and other bar associations had urged that any summons to a lawyer should require a magistrate’s approval and that fees received for legal advice should not be presumed to be proceeds of crime.
The suo motu proceedings stem from two recent incidents that raised concerns about investigative agencies summoning advocates over their legal advice. In one, the Enforcement Directorate issued summons to senior advocates Arvind Datar and Pratap Venugopal, prompting protests from bar associations. The ED later withdrew the notices and issued a circular requiring its Director’s prior approval before summoning lawyers.
In another case, the Gujarat Police summoned an advocate representing an accused, leading a Bench of Justices KV Viswanathan and N.K. Singh to stay the notice. Observing that such actions could undermine the independence of the legal profession and the fair administration of justice, the Bench referred the matter to the CJI, resulting in the current suo motu case that was registered on July 4.
