New Delhi: In a landmark verdict aimed at protecting lawyer-client privilege, the Supreme Court Friday issued a slew of directions to curb arbitrary summoning of lawyers by probe agencies for rendering advice, and said investigating officers (IOs) cannot summon them in criminal probes unless approved by the superintendent of police.
A bench of Chief Justice BR Gavai and Justice K Vinod Chandran, while deciding a suo motu case titled as ‘IN RE: Summoning Advocates who give legal opinion or represent parties during investigation of cases and related issues’, issued a detailed framework aimed at preventing arbitrary coercion of lawyers by police and other probe agencies.
“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 IO has knowledge of, which falls under the exceptions, in which case it has to be specifically mentioned in the summons, which the lawyer summoned can challenge under … the BNSS (Bharatiya Nagarik Suraksha Sanhita),” Justice Chandran, who authored the 78-page judgement, said.
“We also make it clear that any such summons issued as against a lawyer by an IO has to be with the approval and satisfaction of the hierarchical Superior, not below the rank of a Superintendent of Police which satisfaction has to be recorded in writing and should mention the facts leading to the exception under Section 132 of Bharatiya Sakshya Adhiniyam (BSA), for which the summons is issued,” the verdict said.
Referring to Section 132 of the BSA, the verdict said it is a privilege conferred on the client obliging the advocate not to disclose any professional communications made in confidence.
It said compelling lawyers to divulge privileged professional communications without statutory basis would fundamentally impair the right to legal representation and fair trial.
“Despite our conviction to the contrary, on the framing of guidelines and constituting a committee of professionals, we cannot but express our anguish in the investigating agencies summoning advocates appearing in a case, in furtherance of the investigation of the said case,” the bench said and quashed the summons issued against a lawyer in a criminal case.
The bench, which refused to issue comprehensive guidelines, passed directions to deal with the summons against lawyers.
Issuing directions as a way forward, it said, “Section 132 of the BSA is a privilege conferred on the client, obliging an advocate not to disclose any professional communications, made in confidence, which privilege, in the absence of the client can be invoked by the Advocate on behalf of the client.”
It said summons issued to lawyers shall be subject to judicial review at the instance of the advocate or the client under the BNSS.
“The advocate on whom there is an obligation of non-disclosure as per Section 132 of the BSA shall be one who is engaged in a litigation or in a non-litigious or a pre-litigation matter,” it said.
“Production of documents in the possession of an advocate or the client will not be covered under the privilege conferred by Section 132, either in a civil case or a criminal case,” it said.
In a criminal case, the production of a document directed by a court or an officer shall be complied with by production before the court under the BNSS, it said.
“On production of such a document, it shall be upon the court to decide on any objection filed with respect to the order to produce, and the admissibility of the document, after hearing the advocate and the party whom the advocate represents,” it said.
On production of a digital device, it said they can be produced at the instruction of an IO before the jurisdictional court only.
“On production of the digital device by the advocate before the Court; the Court shall issue notice to the party with respect to whom the details are sought to be discovered from the digital device and hear the party and the advocate on any objection regarding the production of the digital device, discovery from it and the admissibility of that discovered,” it said.
If the objections are overruled, only then the digital device can be opened in the presence of litigants and advocates, who will be provided the help of digital experts.
“While examining the digital device, care shall be taken by the court not to impair the confidentiality with respect to the other clients of the advocate and the discovery shall be confined to that sought by the Investigating Officer, if it is found to be permissible and admissible,” it said.
“In-house counsel (employed in a firm) will not be entitled to the privilege under Section 132 since they are not Advocates practising in courts as spoken of in the BSA,” it said.
The in-house counsel, however, would be entitled to the protection under Section 134 pertaining to any communication made to the legal advisor of his employer, it said.
The matter arose from a notice issued to a Gujarat-based advocate under Section 179 of the BNSS summoning him to reveal “true details of the facts and circumstances” of a case in which he represented an accused.
The high court had declined to interfere, prompting a reference to a larger bench due to the “grave public importance” of the questions involved.
Rejecting the high court’s reasoning, the top court said the summons was illegal and violated section 132.
