'How Can ED Summon Lawyers For Privileged Communications With Clients?There Should Be Guidelines' : Supreme Court

The Supreme Court today stressed the need to have guidelines to address the issue of the Enforcement Directorate (ED) and other investigating agencies summoning lawyers over the legal advice given to clients in criminal cases. 

A bench comprising Chief Justice of India BR Gavai, Justice K Vinod Chandran and Justice NV Anjaria was hearing the Suo Motu case titled "In Re : Summoning Advocates Who Give Legal Opinion or Represent Parties During Investigation of Cases and Related Issues". 

Recently, the action of the Enforcement Directorate in issuing summons to two Senior Advocates- Arvind Datar and Pratap Venugopal- in respect of the legal advice given by them had led to widespread outrage. Following the protests by the bar associations, the ED withdrew the summons issued to the lawyers and issued a circular that summons to lawyers cannot be issued without the prior permission of the ED Director.

At the outset, the bench was informed that the ED has issued a circular mandating the prior permission of the Director for issuing summons to advocates.

One Counsel submitted that the ramifications of such a summons would be adverse to the free functioning of lawyers. He said : "Otherwise it will have a chilling effect on the whole justice delivery system. Lawyers will not be able to freely advise my lords." 

Another counsel added, "Advice can be right or advice can be wrong..." 

The CJI at this juncture added, "Even if it is wrong, it is a privileged communication. How can you be summoned by ED for that? For all these matters, there should be some guidelines." 

Senior Advocate Vikas Singh, the President of the Supreme Court Bar Association, said that India should not be going the way of other countries which cracked down on the independence of the legal profession :  "My lords may set it down once and for all, because the European Commission on Human Rights has also something to say. In Turkey, the entire Bar Association was disbanded. China also faced similar...so we should not be going that way, my lords." 

Attorney General for India R Venkataramani, appearing for the Union, submitted that he had a word with the ED Office, and admitted that the summons to lawyers was wrong. "I had a word, what is happening is certainly wrong."

CJI BR Gavai said that he was shocked to read the reports in LiveLaw and Bar & Bench regarding the ED issuing summons to advocates.

"We read in LiveLawIndia and Bar and Bench, whatever we read, was surprising."

Narrative Is Being Built Against The Institution Of ED - SG Tushar Mehta; Bench Counters 

Solicitor General Tushar Mehta, saying that he was not taking an "adversarial" stand in the matter, however, added that there was a narrative being built against the ED and urged the bench to not be influenced by media reports.

"As far as general observations are concerned, sometimes misconstrued, depending upon individual cases. I am saying this, not the ED, there is a concentrated effort to create a narrative against an institution. My lords may find in a few cases where there is overstepping, My lords will obviously-" 

The CJI interjected him, "We are finding this in many cases, it's not like we are not finding (overstepping)" 

SG then appealed to the Court not to be swayed by interviews and news. He said, "Please do not... based on interviews and YouTube- there is narrative building going on."

Disagreeing with the same, the CJI said that the observations in question are coming from the bench's experience of handling the cases before it. He referred to how today itself, he asked the lawyers representing political persons/ State Government in separate matters, not to politicise the Court. He was referring to the plea for criminal contempt against WB CM Mamata Banerjee and the challenge to the quashing of the criminal case against BJP MP Tajasvi Surya. In another case related to the Karnataka MUDA Case, the CJI had asked ED why it was being used for "political battles."

While both the CJI and the SG were on the page that observations of a bench are based on the facts of each case, the CJI highlighted how the ED has been filing appeals even against well-reasoned orders only for the sake of filing them. 

"The ED, even after well-reasoned orders are passed, is filing appeal after appeal only for the sake of filing them," CJI said.

The SG countered that even before a matter is reached in the Courts, "the narrative building starts" through interviews and YouTube. He suggested that the Court also consider the issue of whether a lawyer can build a narrative outside the court while representing a client. 

The bench expressly clarified that it was not basing its observations on the basis of any news or YouTube Interviews, which SG was pointing at. 

Justice Chandran also objected to SG's contention and expressed: " How do you say that these narratives will influence us if we do not see them at all? Narratives will go on all over, people might be concerned, but you cannot say that we have been influenced by it." 

CJI also added, "Have you seen any of the judgments authored by us in which the decision is not based on the facts of the case? Name one judgment."

The bench clarified that presently it is only restricting itself to the issue of summoning lawyers by ED and not seeing a wider perspective as raised by the SG. The bench also clarified that the cognisance taken should not be seen in an adversarial way, as 'ultimately we all are lawyers'. 

SCAORA President Vipin Nair informed the bench that when the ED summons was issued to Senior Adv Datar, whi was then in Spain, was very much shocked.  It was stressed that the experience was traumatising for the lawyers alike. 

SG mentioned that as soon as he got to know about the development (ED Summons to Datar), the issue was brought to the "notice of the highest executive and within 6 hours circular was issued withdrawing the summons."

Vikas Singh at this point intervened to say that the issue was not about the summons to any particular lawyer but about this general trend. SG then spoke about a case where a lawyer was giving telephonic advice to a criminal regarding how to dispose of the dead body. Singh responded that such instances of criminal conspiracy are expressly exempted from the privilege under Section 126 of the Evidence Act.

Matter is now listed for July 29 . Bench directed the counsels to file a comprehensive note, and allowed intervention applications. 

The suo motu case was taken after a bench comprising Justice KV Viswanathan and Justice NK Singh had expressed concerns over the trend of police and investigative agencies summoning advocates, and had referred the matter to the Chief Justice of India. This development happened in a case where the Gujarat Police summoned an advocate who represented an accused. Staying the notice issued to the lawyer, the bench observed that summoning advocates will undermine the independence of the legal profession and consequently impact the fair administration of justice. Following the intervention by Justice Viswanathan's bench, the suo motu case was registered on July 4.

Case : In Re : Summoning Advocates Who Give Legal Opinion or Represent Parties During Investigation of Cases and Related Issues | SMW(Cal) 2/2025