Lawyers giving legal advice can't be summoned by probe agencies: Supreme Court
Supreme Court
said on Tuesday.
If any lawyer "is assisting the client in the crime", then he can be summoned, it said.
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The observations were made by a bench comprising Chief Justice B R Gavai and Justice K Vinod Chandran while hearing a suo motu case about summoning of advocates by probe agencies for offering legal advice or representing clients during investigations.
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"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," the bench said.
The bench heard submissions on the issue from bar bodies -- the Supreme Court Bar Association (SCBA) and the Supreme Court Advocates-on Record Association (SCAoRA), represented by senior advocate Vikas Singh and lawyer Vipin Nair.
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At the outset, Singh, also the SCBA President, voiced concern over the "chilling effect" that "arbitrary summoning" could have on the legal profession.
"If lawyers can be routinely summoned for advising clients, no one will dare provide counsel in sensitive criminal cases," he said, adding that safeguards similar to those followed by the CBI should be implemented.
He proposed that permission for summoning a lawyer should come from the Superintendent of Police of a district and then be scrutinised by a judicial magistrate before issuance.
The bench indicated that judicial oversight could serve as a crucial check on investigative overreach.
Solicitor General Tushar Mehta, appearing for the Enforcement Directorate, agreed with the core premise that lawyers should not be summoned merely for offering legal advice.
He emphasised that the privilege of communication between a lawyer and a client must be respected.
"The profession itself is protected under the proviso," he said, but cautioned against introducing measures that could result in inequality.
"A magistrate's permission only for summoning lawyers, not non-lawyers, may violate Article 14," the law officer said.
Referring to earlier incidents when senior advocates Arvind Datar and Pratap Venugopal were summoned, the law officer said that any misuse of authority was promptly addressed.
"Within six hours of the complaint, the action was withdrawn," he said.
The law officer said that before any summons is issued, the ED Director can personally review the matter to avoid misuse.
Senior advocate Mukul Rohatgi added another dimension by highlighting the status of in-house counsel, a category often caught in the crosshairs without sufficient protection.
Senior advocate Sidharth Luthra raised the issue of fees paid for legal opinions and said that lawyers may not be aware whether their fees were paid from the alleged proceeds of the crime.
Another senior lawyer, Shoeb Alam, referred to the freezing of accounts of a reputed law firm, saying that fees received for legal services should be presumed bona fide.
The counsel appearing for the SCAoRA stressed the principle of 'class privilege' and invoked the legal doctrine of
client-lawyer confidentiality
.
"If we are required to explain our advice, it amounts to self-incrimination," a counsel argued.
The solicitor general said a reputed law firm should not be casually named.
Referring to a specific case, the solicitor general said, "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."
The bench directed that written suggestions submitted by SCBA and SCAoRA be forwarded to the Solicitor General and the Attorney General within three days.
The matter has now been posted for further hearing on August 12, when the Centre will respond.
Earlier, the top court had said that ED was "crossing all limits" and expressed serious concern over the agency summoning advocates for offering legal advice or representing clients during investigations. It also called for guidelines on the matter.
"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 said.
"Guidelines should be framed," he said while responding to submissions that recent ED notices to legal professionals like senior advocate Datar could have a chilling effect on the practice of law.
On June 20, the ED said it had directed its investigating officers not to issue summons to any advocate in money laundering investigations being carried out against their clients. An exception to this rule can only be made after "approval" by the agency's director, it added.
The ED, tasked with combating money laundering crimes, issued a circular for guidance of its field formations, stating that "no summons" should be issued to any advocate in violation of Section 132 of the Bhartiya Sakshya Adhiniyam (BSA), 2023.
The issuing of summons to these advocates was condemned by the SCBA and the SCAoRA, which called the move a "disturbing trend" that struck at the very foundations of the legal profession.
The bar bodies had urged the CJI to take suo motu cognisance of the matter.
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