No Summons To Lawyers Without Prior Permission Of Director: ED Issues Circular

Following a backlash over issuance of summons to two Senior Advocates in relation to their legal opinions to a client, the Enforcement Directorate has come out with a Circular prohibiting its officials from issuing summons to advocates in connection with their legal opinions.

If any summon is to be issued as per exceptions available under law, the same shall be with prior permission of the agency's Director, ED has notified.

"ED has issued a Circular for the guidance of the field formations that no summons shall be issued to any Advocate in violation of Section 132 of the Bhartiya Sakshya Adhiniyam, 2023. Further if any summons needs to be issued under the exceptions carved out in proviso to section 132 of the BSA, 2023, the same shall be issued only with the prior approval of the Director, ED" read a post published by ED on its official X handle.

For context, Section 132 of BSA enshrines the principle of lawyer-client privilege. It reads thus:

"No advocate, shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his service as such advocate, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional service, or to disclose any advice given by him to his client in the course and for the purpose of such service:

Provided that nothing in this section shall protect from disclosure of-

(a) any such communication made in furtherance of any illegal purpose;

(b) any fact observed by any advocate, in the course of his service as such, showing that any crime or fraud has been committed since the commencement of his service.

(2) It is immaterial whether the attention of such advocate referred to in the proviso to sub-section (1), was or was not directed to such fact by or on behalf of his client.

Explanation. - The obligation stated in this section continues after the professional service has ceased."

It may be recalled that ED officials recently issued summons to two Senior Advocates - Arvind P Datar and Pratap Venugopal - in connection with their legal advice to M/s Care Health Insurance on the ESOP (employee stock ownership) issued to former Religare Enterprises chairperson Dr Rashmi Saluja.

This action drew condemnation from various Bar bodies across the country, some of which urged the Supreme Court to take suo motu cognizance, citing threat to autonomy of advocates and underlining the principle of lawyer-client privilege.

ED eventually withdrew the summons issued to both Senior Advocates. Now, its headquarters have issued a formal circular restraining officials from summoning advocates in violation of legal provisions.

Click here to read circular