The Supreme Court of India on Tuesday stated that there is a need for formulating guidelines to protect lawyers from summons issued by investigating agencies probing their clients.
A bench headed by Chief Justice of India B.R. Gavai asked the Attorney General and Solicitor General of India to give their suggestions for the guidelines to stop investigative agencies like the Enforcement Directorate (ED), CBI, and police from misusing their power by summoning lawyers, simply because they gave legal advice to a client under investigation.
This issue came to light after the ED issued summons to two senior lawyers Arvind Datar and Pratap Venugopal in a case involving ESOPs (stock options) granted by Care Health Insurance to business executive Rashmi Saluja.
Datar had stated a legal opinion in the matter, while Venugopal was the official advocate handling the case.
After a public outcry, the ED withdrew the summons and issued a circular to prevent such moves in future.
What is the issue?
Lawyers are supposed to be free to give legal advice, without the fear that they would be dragged into their client’s legal troubles. If agencies start calling in lawyers just because they offered a legal opinion, it will discourage lawyers from taking on sensitive or controversial cases.
During the hearing, Supreme Court Bar Association President Vikas Singh told the bench that it should be made mandatory for investigating agencies to get approval from a higher officer (like a Superintendent of Police) before issuing a summons to a lawyer.
Some also opined that even a magistrate should be involved; to approve it first. However, the government’s top lawyer, Solicitor General Tushar Mehta, said that while an SP-level approval was fine, asking for a magistrate’s permission could go too far and might even be legally challenged.
Senior Advocate Amit Desai raised the issue of search warrants being issued to law firms and highlighted the importance of protecting privileged documents during investigation.
“There is a debate on privileged and non-privileged documents. There are guidelines in UK, US, Singapore. During probe, this aspect needs to be concerned where privileged documents cannot be handed over to the investigating agencies,” he said.
Senior Advocate Atmaram Nadkarni, appearing on behalf of SCAORA—who had cautioned against allowing access to electronic devices belonging to lawyers—said that “the process of looking into laptops and other devices of lawyers cannot be allowed”.
SG Mehta responded by assuring that the government would consider all suggestions carefully, also citing an incident to bring out a point.
“There was a case of a fugitive who left the country. The agency went to collect documents for the probe. The firm involved is the most honest one. The firm should not have been named. Let not one incident led to statutory changes,” he explained.
Why does this matter?
If lawyers fear being summoned or searched for simply doing their jobs, many may stop giving honest legal opinions. This could hurt the right to legal defence, which is a key part of any democracy.
How is this happening in other countries?
In a recent case against former US President Donald Trump, prosecutors tried to use notes and testimony from Trump’s former lawyer, Evan Corcoran, in connection with classified documents found at Trump’s home.
Normally, lawyer-client communication is confidential, but in this case, the court allowed some of those communications to be used, because it was believed that the lawyer’s advice may have been used to help commit a crime.
What happens next?
The Supreme Court will hear the government’s top lawyers on August 12 before deciding on final guidelines. If issued, these rules could set an important precedent to ensure that lawyers can continue their work without fear, and also that investigative agencies remain within their legal limits.
