The Supreme Court has ruled that in-house counsel cannot claim legal privilege under Section 132 of the Bhartiya Sakshya Adhiniyam, 2023, affirming that only practicing advocates appearing in courts are entitled to this protection.
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NEW DELHI: In a landmark judgment clarifying the scope of legal privilege under the Bhartiya Sakshya Adhiniyam, 2023 (BSA), the Supreme Court of India has held that in-house counsel are not entitled to the protection of privilege under Section 132 of the BSA, as they do not qualify as “Advocates practicing in Courts” within the meaning of the law.
The decision was rendered by a three-judge Bench comprising Chief Justice of India (CJI) B.R. Gavai, Justice K. Vinod Chandran, and Justice N.V. Anjaria, in a suo motu case arising from a reference made by a two-judge Bench during the hearing of a Special Leave Petition (SLP) related to a notice issued under Section 179 of the BSA.
The Supreme Court categorically stated:
“In-house counsel will not be entitled to the privilege under Section 132 since they are not Advocates practicing in Courts as spoken of in the BSA. The in-house counsel, however, would be entitled to the protection under Section 134 insofar as any communication made to the legal advisor of his employer, which however, cannot be claimed for the communications between the employer and the in-house counsel.”
The Court emphasized that while in-house counsel may provide legal advice to their employers, they remain salaried employees bound by the organization’s commercial and strategic interests, unlike independent advocates who practice law and represent clients before courts.
Background of the Case
The issue arose in a suo motu matter after a summons was issued to an advocate under Section 179 of the Bhartiya Sakshya Adhiniyam, compelling disclosure of client-related communications. The Supreme Court took cognizance and examined whether in-house counsel and practicing advocates are equally entitled to privilege under the new BSA framework, which replaced the Indian Evidence Act, 1872.
The Bench noted that a society titled General Counsels Association of India, comprising legal heads of major corporations, intervened, claiming that in-house counsel perform the same advisory functions as external advocates and should thus receive identical legal privilege under Sections 132 and 134 of the BSA.
However, the Court dismissed this argument, relying on Rule 49 of Chapter 2, Part VI of the Bar Council of India Rules, which prohibits advocates in full-time employment from practicing law in courts.
Supreme Court’s Observations
The Bench drew parallels with Section 126 of the Indian Evidence Act, 1872, which granted privilege to “barristers, attorneys, pleaders, or vakils.” Post-enactment of the Advocates Act, 1961, the term “Advocate” now refers specifically to those enrolled with the Bar Council and engaged in legal practice.
The Court clarified:
“The fact of their regular employment with full salaries takes them away from the definition of an Advocate as defined under the Advocates Act, 1961, which has been incorporated in Section 132 of the BSA.”
Therefore, a full-time, salaried in-house counsel cannot claim the same legal privilege as a practicing advocate for communications with their employer. However, they remain protected under Section 134, which safeguards communications made to a legal advisor by their employer.
Setting aside the impugned summons, the Bench ruled that any summons to an advocate for documents relating to a client must be issued only for production before a court, not before investigating officers. The court alone must determine the admissibility and privilege of such communications under Section 132.
The judgment concluded:
“We find the summons issued in the instant case to be illegal and against the provisions of Section 132. The High Court, exercising jurisdiction under Section 528 of the BNSS, erred in refusing to interfere with the same.”
The Court cautioned investigating officers (IOs) to respect the limits of privilege and confidentiality accorded to advocates and disposed of the suo motu proceedings.
The Supreme Court’s conclusions were both clear and measured. It held that:
- No investigating agency can summon a lawyer simply because they represented an accused or gave legal advice. Doing so is illegal and amounts to interference with justice.
- If there is specific evidence that a lawyer has crossed the line and participated in a crime, they can be summoned, but only with written approval from a senior officer (not below the rank of Superintendent of Police) and with clear reasons recorded.
- The privilege of client-lawyer communication is not the lawyer’s personal right; it belongs to the client and cannot be violated except in very limited circumstances.
Highlights of the Judgment
This ruling draws a clear distinction between practicing advocates and in-house counsel, reinforcing the professional boundaries set by the Advocates Act, 1961, and the Bar Council of India Rules.
Key highlights include:
- In-house counsel are not “Advocates” for Section 132 BSA.
- Privilege does not extend to communications between an employer and in-house counsel.
- Protection under Section 134 applies only to communications made to the employer’s legal advisor.
- Investigating agencies cannot compel lawyers to disclose client communications without court oversight.
Case Title:
IN RE: Summoning Advocates who give legal opinion or represent parties during the investigation of cases and related issues.
Suo Motu Writ Petition (Criminal) No.2 of 2025
READ JUDGMENT
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