Today, On 21st July, CJI B.R. Gavai-led bench slammed the ED for summoning lawyers merely for giving legal advice, calling it a breach of client confidentiality. “Lawyers can’t be summoned; such advice is protected by privileged communication,” the court said.
New Delhi: The Supreme Court heard a suo motu case related to the Enforcement Directorate (ED) summoning advocates just for offering legal advice to their clients.
The top court expressed concern over this development and made it clear that such actions interfere with the basic rights of lawyers and their clients.
The case heard by a bench headed by Chief Justice of India B.R. Gavai, and includes Justices K. Vinod Chandran and N.V. Anjaria.
Chief Justice of India B.R. Gavai strongly criticised the Enforcement Directorate (ED), stating that “its officials are ‘crossing all limits’ by summoning lawyers for simply advising their clients.” He emphasised the urgent need to frame proper guidelines to curb such actions by the central investigating agency.
Also Read: ED Issues New Rule: Advocates Can’t Be Summoned Without Director’s Approval
During the hearing, the advocate appearing for the concerned party informed the court that the Enforcement Directorate had now issued a fresh notice.
As per this new communication, ED clarified that “advocates providing legal advice cannot be summoned, as doing so would have a chilling effect.”
Chief Justice of India (CJI) Gavai also strongly criticised the ED’s earlier move.
The CJI said that,
“Lawyers cannot be summoned in this manner, as such interactions are protected by privileged communication.”
He pointed out that what he had read in media reports was surprising. He said,
“What I read in @LiveLaw and @barandbench was unexpected,”
Solicitor General (SG) Tushar Mehta, representing the Centre and ED, tried to clarify the situation.
He said,
“There is a deliberate effort to create a narrative targeting an institution.”
To this, CJI responded,
“I am noticing similar patterns in several matters.”
SG Mehta requested the court to not rely too much on media content,
“Please do not be guided by interviews or media reports. Lawyers cannot be summoned merely for providing legal opinions. At times, general observations are misunderstood as being about specific cases. There is a concerted attempt to build a narrative against the institution.”
He also added,
“Even if a person is a politician accused in a Rs.3,000‑crore scam, a narrative cannot be shaped solely through interviews or media statements.”
The Chief Justice further remarked,
“We are seeing in multiple cases that even after reasoned orders of the High Court, the ED keeps filing appeals. We don’t have time to watch YouTube or anything else. We now have to lay down guidelines.”
To this, SG Mehta agreed, saying,
“Yes, guidelines also, but one can still build narratives outside the court.”
Justice Vinod Chandran added that the judges are not influenced by media narratives.
“You cannot say that we will be influenced by such narratives.”
CJI then reminded everyone that the court is not treating the issue in an adversarial way,
“None of us are taking this adversarial manner. We are also lawyers and we also get argumentative.”
Senior Advocate Vipin Nair, who was representing the Supreme Court Advocates-on-Record Association (SCAORA), appreciated the court’s approach.
He said,
“Grateful that SCAORA’s representation was considered. The lawyer involved was in Spain at the time and couldn’t even sleep.”
CJI further directed the registry, saying,
“Allow all interventions.”
The Solicitor General informed the Bench that action was taken swiftly after the issue came to light,
“Once we learnt about Mr. Datar, top officials acted immediately and a circular was issued within 6 hours.”
Towards the end of the hearing, the CJI concluded by announcing the next date of hearing. “We will list this on July 29 Tuesday.”
The court also directed that a comprehensive note must be filed before the next hearing and permitted interventions by other parties,
“Direction given to file comprehensive note and interventions are allowed.”
The Supreme Court initiated a Suo Motu Contempt (SMC) action on July 8, after noting that the Enforcement Directorate (ED) had summoned senior lawyers Arvind Datar and Pratap Venugopal. This occurred in connection with their provision of legal opinions or representation during the investigation of various cases for their clients.
It’s important to highlight that the power for SMC is granted to courts under Articles 32 and 226, which pertain to the enforcement of fundamental rights, as well as Article 142, which empowers the Supreme Court with broad authority.
SMC allows the Supreme Court to act independently, without a formal petition or complaint.
Recently, the top court enforced SMC in cases involving Datar and Venugopal, who were summoned for allegedly providing legal advice. However, following significant opposition from the legal community, the ED retracted its summons to both lawyers.