In response to mounting concerns within the legal fraternity over investigative overreach the Supreme Court on Tuesday resumed hearing in the suo motu matter of Summoning Advocates Who Give Legal Opinion or Represent Parties During Investigation of Cases and Related Issues, which emerged against the backdrop of Enforcement Directorate (ED) notices issued to two Senior Advocates in connection with legal advice rendered by them. The bench, comprising Chief Justice of India BR Gavai and Justice K Vinod Chandran, heard detailed submissions from representatives of various bar bodies before adjourning the matter to August 12 for the Union Government’s response.
At the heart of the proceedings lies a fundamental question, Can investigative agencies summon advocates solely for advising clients or offering legal representation during criminal investigations? The bar associations have contended that such actions erode the sanctity of professional privilege and called for procedural safeguards, including prior judicial approval.
The proceedings stem from a July 4 order passed by a Bench of Justice KV Viswanathan and Justice NK Singh, which had stayed a summons issued by Gujarat Police to a lawyer representing an accused and expressed serious reservations about the increasing trend of summoning legal counsel. The bench had referred the issue to the CJI for appropriate institutional consideration, prompting the present suo motu action.
Appearing for the Supreme Court Bar Association, Senior Advocate Vikas Singh submitted that the routine issuance of summons to lawyers could have a “chilling effect” on the legal profession. “No lawyer will think of advising someone in a sensitive criminal case,” he argued, proposing that summons to advocates should only be issued after approval by a Magistrate and upon satisfaction of a senior police officer of Superintendent rank.
Echoing this concern, Senior Advocate Atmaram Nadkarni, representing the Supreme Court Advocates-on-Record Association (SCAORA), criticised the ED’s recent circular, which requires prior approval of the Director before issuing summons to lawyers, terming it inadequate. “It is neither here nor there,” Nadkarni remarked, highlighting the risk posed by investigative scrutiny of lawyer's devices containing privileged material. “Threatening or coercing the lawyer is an affront to the justice delivery system,” he asserted.
Solicitor General Tushar Mehta, appearing for the Union, clarified that “a lawyer cannot be summoned merely for giving advice to a client.” He acknowledged the professional privilege under Section 126 of the Indian Evidence Act, but added that such protection would not extend to advocates actively participating in illegal conduct. Opposing the suggestion for judicial oversight exclusively for lawyers, the Solicitor General (SG) submitted that it may raise concerns under Article 14 of the Constitution.
The Court, however, appeared unconvinced by the suggestion that these were isolated incidents. Responding to the SG’s argument that only a “stray incident” had occurred, CJI Gavai observed that two senior lawyers had received summons. The SG noted that those notices were withdrawn within hours following intervention by senior officials, but concerns persisted regarding broader implications for the legal profession.
Senior Advocate Mukul Rohatgi and Senior Advocate Siddharth Luthra also intervened, drawing attention to the implications of linking professional fees to proceeds of crime under the Prevention of Money Laundering Act (PMLA). Senior Advocate Siddharth Luthra warned that allowing agencies to treat legal fees as tainted would undermine the right against self-incrimination under Article 20(3). Senior Advocate Shoeb Alam cited the recent freezing of a law firm’s bank account to underscore the risks posed by overreach. “While the ED is testing the legitimacy of the fees received, the magistrate should presume that the amount is bona fide professional remuneration,” he suggested.
Attorney General R Venkataramani clarified that he did not endorse the summoning of lawyers and had conveyed the bar’s concerns to the authorities. Senior Advocate Amit Desai pressed for safeguards to prevent the search and seizure of privileged documents from law firms, warning of the broader consequences such actions could have on client confidentiality.
The CJI, reiterating the Court’s limited concern, stated, “We have said in the beginning itself that if somebody is assisting the client in the crime, then he be summoned, but not merely for giving legal advice.”
The Court’s next hearing, scheduled for August 12, will take into account the Centre’s reply and is expected to address the contours of permissible state action in relation to legal advice and the extent to which professional privilege can shield advocates from investigative scrutiny.
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