Today, the Supreme Court continued hearings in a suo motu matter titled “In Re: Summoning of Advocates Who Render Legal Advice or Represent Clients During Criminal Investigations and Related Concerns.” The case was initiated following public and institutional concern over recent instances where the Enforcement Directorate (ED) issued summons to two senior advocates for their professional involvement in ongoing investigations.
The Bench comprising Chief Justice B.R. Gavai and Justice K. Vinod Chandran heard submissions from various bar associations and senior members of the legal fraternity. After initial deliberations, the Court scheduled the matter for further hearing on August 12, directing the Union of India to file its response.
Senior Advocate Vikas Singh, appearing for the Supreme Court Bar Association, cautioned that allowing investigative agencies to summon advocates for offering legal advice would severely impact the independence of the legal profession. He warned of a potential “chilling effect,” stating that lawyers may hesitate to provide counsel in sensitive criminal matters if such actions go unchecked. Singh proposed that any such summons should require prior magisterial approval and be issued only upon clearance by a senior police officer of Superintendent rank or higher.
Senior Advocate Atmaram Nadkarni, representing SCAORA, questioned the adequacy of the ED’s internal circular that mandates prior approval from the Director before summoning a lawyer. He asserted that this internal safeguard does not constitute proper judicial oversight, and emphasized that such actions could infringe upon client confidentiality and advocate independence. Nadkarni raised further alarm over the search and seizure of devices and documents belonging to advocates, which may include privileged communication unrelated to the case under investigation.
Attorney General R. Venkataramani clarified that the Union Government does not endorse the practice of summoning advocates merely for giving legal advice. Solicitor General Tushar Mehta concurred, stating that legal counsel per se cannot justify issuance of summons, unless the lawyer’s actions fall within the exceptions under Section 126 of the Indian Evidence Act. However, he urged the Court not to frame broad guidelines based on isolated incidents.
Responding to a judicial observation, SG Mehta acknowledged that summons were indeed issued to two senior lawyers, but highlighted that the ED withdrew the notices within hours after escalation. He further opposed the proposal for magisterial vetting, arguing that such a requirement may violate Article 14 by creating unequal treatment for lawyers compared to other citizens.
Senior Advocate Mukul Rohatgi emphasized the need to extend protections to in-house and general counsel, noting their increasing exposure in corporate and criminal litigation. Senior Advocate Vijay Hansaria warned that compelling lawyers to disclose privileged client communication could infringe the right against self-incrimination under Article 20(3).
Senior Advocate Siddharth Luthra raised a particular concern in money laundering investigations, where agencies may attempt to equate a lawyer’s fees with proceeds of crime. In support, Senior Advocate Shoeb Alam pointed to a past incident where the bank account of a prominent law firm was frozen, and access restored only after judicial intervention. Alam argued that such actions require a presumption in favor of legitimate fee transactions unless proven otherwise.
CJI Gavai made it clear that the Court’s concern is not with lawyers aiding in criminal acts, but with the principle of whether they can be summoned solely on the basis of rendering legal advice. He reiterated that while legal assistance should not be misused to shield unlawful conduct, the mere act of giving professional legal counsel should not attract coercive actions.
Senior Advocate Amit Desai proposed that concrete guidelines be framed to protect the sanctity of privileged documents held by law firms.
The suo motu proceedings stem from an earlier matter where a bench of Justice K.V. Viswanathan and Justice N.K. Singhexpressed grave concern over police summons issued to an advocate representing an accused in Gujarat. The bench stayed the notice, observing that such practices could erode the independence of the Bar and impact the fair administration of justice. The matter was thereafter referred to the Chief Justice for institutional consideration.
The present suo motu case was registered on July 4 in light of growing unease within the legal community following the ED's action against Senior Advocates Arvind Datar and Pratap Venugopal, which was subsequently revoked after nationwide protests by bar associations.
The next hearing is set for August 12, where the Court is expected to evaluate the Union's response and possibly begin discussions on framing institutional safeguards to ensure that advocates are not unfairly targeted for discharging their professional duties.
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