Supreme Court To Pronounce Judgment Tomorrow On Investigating Agencies Summoning Advocates Over Legal Advice

A bench comprising Chief Justice of India BR Gavai, Justice K Vinod Chandran and Justice NV Anjaria is examining the issue.

The bench, while reserving the matter on August 12, indicated that it will lay down guidelines to ensure that the independence of the legal profession as well attorney-client privilege arenot breached.

During the hearings, Attorney General for India R Venkataramani, Solicitor General of India Tushar Mehta, Senior Advocate and Supreme Court Bar Association President Vikas Singh, Supreme Court Advocates-on-Record Association President Vipin Nair etc., submitted their suggestions. Senior Advocates Siddharth Luthra, Vijay Hansaria, Amit Desai, Ranjit Kumar etc, appearing for different bar associations, also gave their suggestions.

SCBA, the SCAORA and other bar associations submitted to the Court that any summons issued to a lawyer should only be after a magistrate's approval, and it should not be prima facie assumed that the fees received for the legal advice are from the proceeds of crime.

Vikas Singh for SCBA cited the Jacob Mathew case, which held that FIRs against doctors in medical negligence cases can be registered only after a preliminary examination by an expert committee comprising doctors. He suggested adopting a similar measure with respect to the summons to advocates, with the Magistrate exercising oversight.

Solicitor General Tushar Mehta however opposed this suggestion, saying that it would amount to creating a special protection for a class of persons, which would violate the principle of equality under Article 14. The SG further added that a lawyer who is directly involved in a crime cannot claim any protection.

Attorney General also objected to the suggestion for Magisterial oversight, saying that it will amount to giving a "long rope." AG also said that in-house counsel, General counsel etc, will also get the same privileges as a lawyer.

What Led To The Present Case?

The suo motu case followed the controversy created by the action of the Enforcement Directorate in issuing summons to two Senior Advocates- Arvind Datar and Pratap Venugopal. Following the protests by the bar associations, the ED withdrew the summons issued to the lawyers and issued a circular stating that summons to lawyers cannot be issued without the prior permission of the ED Director.

Later, a bench comprising Justice KV Viswanathan and Justice NK Singh expressed concerns over the trend of police and investigative agencies summoning advocates, and 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