Supreme Court to hear if magistrate approval should be mandatory before summoning lawyers in probes. Move follows ED’s controversial summons to senior advocates in ESOP case.
New Delhi: Today, on July , the Supreme Court of India has taken up a significant suo motu case regarding the protection of lawyers from being unnecessarily summoned by investigating agencies while representing their clients.
On Tuesday, a Bench comprising Chief Justice of India BR Gavai and Justice K Vinod Chandran stated that it would hear the Attorney General (AG) and the Solicitor General (SG) on August 12 to discuss guidelines for safeguarding advocates from intrusive investigation-related summons.
“We will hear the SG and AG on August 12. List high on board,”
the Bench declared during the proceedings.
This matter has garnered attention after the Enforcement Directorate (ED) issued summons to Senior Advocates Arvind Datar and Pratap Venugopal.
These summons were in connection with the ED’s ongoing investigation into the issuance of over 22.7 million Employee Stock Option Plans (ESOPs), valued at over Rs 250 crore, by Care Health Insurance to former Religare Enterprises Chairperson Rashmi Saluja.
During the latest proceedings, the Supreme Court bench reiterated the core principle behind its suo motu intervention, stating,
“We have said in the beginning itself that if somebody (lawyer) is assisting the client in the crime, then he can be summoned… but not merely for giving legal advice.”
Echoing the growing concern within the legal fraternity, SCBA President Vikas Singh emphasized the chilling impact of arbitrary summons on legal counsel:
“If lawyers can be routinely summoned for advising clients, no one will dare provide counsel in sensitive criminal cases.”
Solicitor General Tushar Mehta also acknowledged the need to uphold the sanctity of legal practice and the confidentiality of lawyer-client communication, noting:
“The profession itself is protected under the proviso.”
However, he raised a constitutional concern regarding the proposal for judicial scrutiny, stating,
“A magistrate’s permission only for summoning lawyers, not non-lawyers, may violate Article 14.”
Referring to the swift action taken by the ED following widespread outrage over the summons to Senior Advocates Arvind Datar and Pratap Venugopal, Mehta pointed out:
“Within six hours of the complaint, the action was withdrawn.”
The SCAORA also raised critical concerns regarding the erosion of client-lawyer confidentiality. One counsel stated emphatically,
“If we are required to explain our advice, it amounts to self-incrimination.”
Highlighting the need to avoid misuse of investigative powers while also not shielding unlawful conduct, the Solicitor General added,
“A fugitive claimed that all his documents were with a particular firm. We were told to go collect them. Lawyers must be protected, but assistance should be governed strictly by well-established legal provisions.”
Earlier, the Chief Justice of India had also expressed strong disapproval of such actions by investigative agencies, remarking,
“The communication between a lawyer and the clients is privileged communication and how can the notices be issued against them… they are crossing all limits.”
The CJI had further asserted,
“Guidelines should be framed.”
Senior Advocate Datar had provided a legal opinion in support of the ESOP issuance, while Advocate Pratap Venugopal had acted as the Advocate-on-Record.
Following widespread condemnation and criticism from various Bar associations across the country, the ED later withdrew the summons against both Datar and Venugopal.
Responding to the backlash, the ED also issued a circular instructing its field officers not to summon advocates in breach of Section 132 of the Bharatiya Nyaya Sanhita (BNS).
The circular further mandated that any such summons falling under statutory exceptions would now require approval from the ED Director.
Despite the withdrawal of the summons, the Supreme Court decided to examine the issue further on its own motion, based on a formal representation submitted by the Supreme Court Advocates-on-Record Association (SCAORA).
Earlier, on July 21, the Supreme Court expressed shock over the incident and mentioned that it was considering the formulation of guidelines on the matter.
During the latest hearing, Supreme Court Bar Association (SCBA) President Vikas Singh put forth suggestions and emphasized the chilling effect such practices could have on the legal profession.
Singh said,
“We are not defending anyone who falls under the exception or the proviso [under Section 132]. There should be no protection. But we are here only for the privileged communication… How to protect. If the lawyer feels he can [be] called in routine fashion it will have chilling effect on administration of justice,”
He further highlighted the need for protection of lawyers advising on sensitive legal matters, suggesting that supervisory permission should be required before such summons are issued.
Singh proposed that the CBI or police should obtain prior approval from the Superintendent of Police (SP) before issuing a summons to any lawyer. Additionally, he stated:
“If magistrate feels that it is admissible evidence, then summons can be issued.”
Responding to these submissions, Solicitor General Tushar Mehta argued that broad changes to the law should not be made on the basis of a single incident. However, he agreed that issuing summons for mere legal opinions is inappropriate.
“One incident cannot lead to ‘unmanageable’ guidelines,”
SG Mehta said, clarifying his stance while agreeing with Singh on SP-level approval. However, he raised concerns about the recommendation that magistrate approval be required:
“In ED circular, we have quoted the law on the subject. SP level permission for CBI and police is welcome. But for magistrate permission, it would be sending statutory permission and could be challenged for violation of Article 14 since a layer would be created by the court. So I am submitting that have it on next day as AG is submitting and we can take the suggestion into account.”
Senior Advocate Mukul Rohatgi also appeared and requested that the protection be extended to in-house counsel and legal advisors.
Meanwhile, Senior Advocate Shoeb Alam referred to a recent case where the law firm Cyril Amarchand Mangaldas had their bank accounts frozen during an investigation. He explained:
“The law firm Amarchand Mangaldas had their accounts frozen. Then it was released post an application ..for magistrate .. they should see that there is a prima facie case of fees for legal opinion.”
Senior Advocate Amit Desai raised the issue of search warrants being issued to law firms and highlighted the importance of protecting privileged documents during investigations:
“There is a debate on privileged and non privileged documents. There are guidelines in UK, US , Singapore. During probe, this aspect needs to be concerned where privileged documents cannot be handed over to the investigating agencies.”
Another key submission came from Senior Advocate Atmaram Nadkarni, appearing on behalf of SCAORA, who cautioned against allowing access to electronic devices belonging to lawyers:
“The process of looking into laptops and other devices of lawyers cannot be allowed.”
SG Mehta responded by assuring the Bench that the government would consider all suggestions carefully, while cautioning against overreaction to isolated incidents:
“There was a case of a fugitive who left the country… The agency went to collect documents for the probe. The firm involved is the most honest one. The firm should not have been named. Let not one incident lead to statutory changes.”
Senior Advocates Ranjit Kumar and Siddharth Luthra also made important contributions during the hearing.
ALSO READ: ED Issues New Rule: Advocates Can’t Be Summoned Without Director’s Approval
The matter will now be taken up again on August 12, where the Attorney General and Solicitor General are expected to present their views on framing protective guidelines that balance investigative needs with the rights and independence of legal professionals in India.
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