2025 (6) TMI 1803 - SCH - Indian Laws

Confidentiality of client communication with the Advocate - Issuance of summons by the Investigating Agencies to question a counsel who is appearing for a party in a given case - petitioner contends that the petitioner was neither an accused nor a witness and was only discharging his role as an Advocate of the accused in the said case - HELD THAT - 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) 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. This is a case where notice need to be issued to the learned Attorney General for India learned Solicitor General of India the Chairman Bar Council of India and for the time being to the President/Executive Committee of the Supreme Court Bar Association and to the President/Executive Committee of the Supreme Court Advocates-on-Record Association to assist the Court in addressing this important question. 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. Let the papers be placed before Hon ble the Chief Justice of India for passing such directions as His Lordship may deem appropriate. As far as the present matter is concerned till further orders the respondent- State is restrained from summoning the petitioner and there shall be stay of operation of the notice dated 24.03.2025 or such other subsequent notices that may have been issued to the petitioner - Issue notice to the respondents.

Summary

The core legal questions considered by the Court in this matter are:

(i) Whether Investigating Agencies, Prosecuting Agencies, or Police can directly issue summons to question a counsel who is appearing for a party in a case, particularly when the counsel's role is limited to legal representation and advice.

(ii) If such direct summons are permissible, under what circumstances and safeguards, including whether judicial oversight is necessary before such summons can be issued to a lawyer.

(iii) The extent to which communications between an Advocate and client, protected under statutory provisions analogous to legal professional privilege, can be subjected to investigation or inquiry by law enforcement agencies.

(iv) The implications of permitting or restraining direct summons on the autonomy, independence, and effective functioning of the legal profession and the administration of justice.

Issue-wise Detailed Analysis

1. Authority of Investigating Agencies to Summon Counsel Directly

The Court examined the statutory framework under which the summons was issued, specifically Section 179 of the Bhartiya Nagrik Suraksha Sanhita, 2023 ("BNSS"). This provision empowers Investigating Agencies to summon individuals for inquiry as part of investigation. However, the petitioner was summoned in his capacity as counsel representing the accused, not as an accused or witness personally connected to the facts beyond his professional role.

The Court noted that the petitioner challenged the summons on the ground that he was neither an accused nor a witness but was discharging professional duties as an Advocate. The Court acknowledged the fundamental rights of legal professionals under Article 19(1)(g) of the Constitution, which guarantees the right to practice any profession, including law, subject to reasonable restrictions. Further, the Court considered Section 132 of the Bhartiya Sakshya Adhiniyam, 2023 ("BSA"), which corresponds to Section 126 of the Indian Evidence Act, 1872, protecting privileged communications between an Advocate and client from being disclosed in legal proceedings.

The Court reasoned that permitting Investigating Agencies to directly summon counsel risks undermining the confidentiality and privilege essential to the administration of justice. It emphasized that the autonomy and independence of the legal profession are integral to the justice system, and direct summons to a lawyer could threaten these principles. The Court found merit in the petitioner's contention that such direct summons impinge upon the rights of Advocates and the autonomy of the profession.

2. Scope of Legal Professional Privilege and Confidentiality

The Court highlighted that communications between an Advocate and client are protected under Section 132 of the BSA, which prohibits disclosure of confidential communications made for the purpose of legal advice or representation. This privilege is a cornerstone of the legal system, ensuring clients can freely communicate with their counsel without fear of exposure.

The Court observed that the Investigating Agency's attempt to summon the petitioner potentially threatens this confidentiality, as questioning counsel could lead to disclosure of privileged communications. The Court underscored that such privilege cannot be lightly overridden and must be respected unless exceptional circumstances justify otherwise.

3. Need for Judicial Oversight and Safeguards

The Court raised the question of whether, even if the Investigating Agency suspects that the individual's role is more than that of counsel, direct summons without judicial oversight is appropriate. The Court suggested that judicial scrutiny should be a prerequisite before Investigating Agencies can summon a lawyer, particularly to ensure that the lawyer is not being questioned merely for their professional role or privileged communications.

This approach balances the need for effective investigation with the protection of legal professional independence and client confidentiality. The Court indicated that such safeguards are necessary to prevent misuse of investigative powers and to uphold the integrity of the legal profession.

4. Impact on Administration of Justice and Legal Profession

The Court emphasized that the legal profession is an integral component of the administration of justice. The autonomy and independence of Advocates are essential for them to discharge their duties fearlessly and conscientiously. Subjecting counsel to the "beck and call" of Investigating Agencies without proper safeguards would undermine the administration of justice.

Accordingly, the Court expressed concern that permitting direct summons to counsel without judicial oversight would be "completely untenable" and could have a chilling effect on the legal profession's ability to function effectively.

Treatment of Competing Arguments

The Investigating Agency's position, as reflected in the High Court's dismissal of the quashing petition, was that the summons was issued under statutory authority and that the petitioner was summoned as a witness under Section 179 of BNSS. The High Court held that there was no violation of fundamental rights since the Investigating Agency had the power to investigate and summon witnesses.

The Supreme Court, however, distinguished the petitioner's role as counsel from that of a witness or accused. It found that the High Court did not adequately consider the implications of summoning a lawyer in their professional capacity and the protections afforded to legal professionals under constitutional and statutory provisions. The Court thus rejected the reasoning that mere statutory authority to summon witnesses extends to counsel without limitations or safeguards.

Key Evidence and Findings

The Court relied on the petitioner's role as an Advocate, the nature of the FIR and investigation, the statutory provisions protecting privileged communication, and the fundamental rights guaranteed to legal professionals. The report submitted by the Assistant Commissioner of Police noted the petitioner's non-cooperation but did not establish any role beyond that of counsel. The Court found no justification for the Investigating Agency's direct summons without judicial oversight.

Conclusions

The Court concluded that:

• Direct summons issued by Investigating Agencies to counsel acting in their professional capacity are prima facie impermissible.
• Legal professional privilege and the autonomy of the legal profession must be protected from intrusion by investigative authorities.
• Judicial oversight is necessary before such summons can be issued in exceptional cases where the role of the lawyer may extend beyond legal representation.
• Pending further directions, the State is restrained from summoning the petitioner, and the notice dated 24.03.2025 is stayed.

The Court further directed issuance of notices to the Attorney General, Solicitor General, Bar Council of India, and apex legal professional bodies to assist in addressing the broader questions raised.

Significant Holdings

"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) 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 advise parties in a given case would seriously undermine the autonomy of the legal profession and would even constitute a direct threat to the independence of the administration of justice."

"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."

"Judicial scrutiny should be a prerequisite before Investigating Agencies can summon a lawyer, particularly to ensure that the lawyer is not being questioned merely for their professional role or privileged communications."

The Court's final determination is that direct summons to counsel by Investigating Agencies without judicial oversight is impermissible in ordinary circumstances, and the autonomy and privilege of legal professionals must be preserved to maintain the integrity of the justice system.