New Delhi: Anguished over summons to advocates in a case where they appear as defence counsels, the Supreme Court underlined Friday that investigating agencies cannot arbitrarily seek the presence of lawyers to further their probe.
A Chief Justice B.R. Gavai-led bench also issued guidelines to ensure that the lawyer-client privilege is not breached during a criminal investigation.
Advocates cannot be questioned about the legal advice they gave to the accused, the three-judge bench said. Formulating the constitutional framework—the basis of lawyer-client relationships—the bench issued regulations for lawyers’ submission of documents and digital devices that might contain client information. The bench, also comprising justices Vinod Chandran and N.V. Anjaria, however, refused to constitute a committee of professionals to supervise the issue of summons or guidelines in this regard.
“We have tried to harmonise the evidentiary rule with the procedural rule, and issued the following directions,” said SC. A summons, it added, can be issued to an advocate only under three exceptions of Section 132 of the Bhartiya Sakshya Adhiniyam (BSA)—the law that replaced the erstwhile Indian Evidence Act.
Section 132 of the BSA mandates that a lawyer can not be compelled to reveal confidential and professional communications, advice, or documents shared with clients without the latter’s express consent.
The SC said that if a case fell under three exceptions, the investigating agency can issue a summons to a lawyer, subject to the conditions outlined in the judgment. These exceptions are that the client has given consent, the lawyer was involved in furthering an illegal purpose, or the advocate learned about a crime or fraud committed in the course of his engagement with the client.
Its verdict was not to tackle a lawyer’s professional misconduct, the court clarified, adding that it was to support advocates coerced into making disclosures.
“The investigating agency/prosecuting agency/the police cannot directly summon a lawyer appearing in a case to elicit the details of the case, unless there is something the investigating officer has knowledge of, which falls under the exceptions,” the court said.
In case of any of the exceptions, a summons has to specifically mention the exception within which it falls. The bench, however, clarified that a lawyer has the legal right to challenge such a summons before a court.
While the SC judgment will be applicable to lawyers who act as defence counsel, lawyers working as general counsel with a company would not be covered by it, the court said, clarifying the definition of a lawyer in the present context. However, if a company’s general counsel shared information with a lawyer offering the company services, protection under Section 132 BSA would kick in.
The order came in a suo motu case. The SC took note of a recent summons issued to practising senior advocates, asking them to appear before the Enforcement Directorate. The lawyers had provided legal advice to their clients under the anti-money laundering agency’s probe.
The bench took suo motu cognisance while hearing an appeal by a Gujarat-based lawyer, challenging an earlier high court order that rejected his plea against a state police summons. The lawyer was told to appear for questioning in a case filed under the Gujarat Money-Lenders Act, 2011, and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The HC order dismissed the lawyer’s petition, observing that his non-cooperation stalled the investigation.
The SC chose to address the issue comprehensively because it felt the “efficacy of the administration of justice” was at stake. Intervention was warranted, as the court also felt that such interference threatened lawyers not to discharge their professional duties conscientiously and fearlessly, directly impinging upon the administration of justice.
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What lawyers & Centre said
Appearing before the SC bench, the senior counsels argued that lawyer-client communication is protected under Section 132 of BSA and that a breach would attract a charge of professional misconduct. They argued that there was no corresponding statutory scheme under which advocates are protected from being coerced into disclosures by an investigating agency with powers to summon witnesses and interrogate suspects under various enactments.
The lawyers who argued before the bench suggested a supervisory mechanism to issue summons to lawyers.
The Centre opposed the supervisory mechanism, while unequivocally agreeing that no advocate can be summoned only for giving a legal opinion or appearing for a party in a case. Immunity with respect to professional communications would not absolve them of liabilities when an advocate participates in a crime beyond his professional duty, it said.
The scope and ambit of Section 132, BSA, should be decided from one case to another, without any overreaching guidelines interfering with the statutory scheme, it argued. A separate procedure for advocates would create a separate class—an artificial and unjustifiable classification—violating the mandate of Article 14, which is the equality code in the Constitution.
What the SC said
Accepting the Centre’s stand that the police officer’s power to investigate a cognisable offence cannot be regulated through supervision, the SC framed a set of directives for the investigating agencies, so that they exercise their power cautiously. The bench laid down the guidelines to avoid an absolute overreach or violation of the statutory mandate, which, it said, “occurs by reason of deliberate design or abject ignorance”.
Specific directions were issued for the police to demand that lawyers produce documents or digital devices that they have. The court clarified that documents belonging to a client but held by an advocate are not covered by privilege under Section 132 of BSA, whether in civil or criminal proceedings.
Hence, it laid down strict procedural safeguards, mandating documents be produced only before the jurisdictional court. Also, a superior officer’s prior approval—someone not below the rank of SP—is a mandatory requirement before investigators issue an advocate a summons.
In criminal cases, if an advocate is directed to produce a client document, it must be done before the court under Section 94 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), read with Section 165 of the BSA, thus ensuring judicial supervision. Section 94 of the BNSS empowers a court or a police officer to issue a summons or a written order for the production of any document or other thing necessary for an investigation, inquiry, or trial. Section 165 BSA governs the production of documents in court.
In civil proceedings, the production of documents will be governed by Section 165 BSA and Order 16 Rule 7 of the Civil Procedure Code (CPC), the court said. Order 16, Rule 7, of the CPC empowers the court to require any person present before it to give evidence or produce a document in their possession or power.
Upon the production of documents, a court must issue notice to the client concerned and hear both the advocate and the client before allowing any discovery from the device. If all objections are overruled, the device might be examined, but only in the presence of the advocate and the client, who might seek the assistance of a digital technology expert of their choice. To maintain the confidentiality of other data, only the information specifically sought and deemed admissible by the court might be disclosed, the SC further said.
“An advocate cannot be coerced into revealing any information, with respect to the client he represents or the cause he is engaged to prosecute or defend, which would be in violation of Section 132 BSA,” the court observed in the verdict.
The court, while citing foreign decisions, discussed in detail the role of lawyers in society and their duties, as part of prosecution or defence, to establish rights or defend against infringements, respectively.
“We are quite conscious of the onerous responsibility cast on a lawyer who takes up an engagement to plead or defend on behalf of a client. There is an obligation cast on him to provide his client the maximum protection, as by law established, in furtherance of the client’s cause,” the SC explained. Hence, it asserted, there is a codified obligation to ensure strict and absolute confidentiality with the communications made by a client.
(Edited by Madhurita Goswami)
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