If lawyer commits an offence, no exceptions should apply, SG Tushar Mehta tells Supreme Court

Indian Express

16 hours ago

The Supreme Court on Tuesday reserved its decision on the question whether lawyers can be summoned by probe agencies for their legal opinion while investigating their clients.
A bench of Chief Justice of India B R Gavai and Justices K Vinod Chandran and N V Anjaria was hearing a suo motu case on summoning of 2 senior advocates by probe agencies while representing clients in cases.
Supreme Court Bar Association president and Senior Advocate Vikas Singh referred to the 2005 judgment in the Jacob Mathew case, which dealt with FIRs against doctors in medical negligence cases and mandated a preliminary examination by an expert committee comprising doctors before registration of FIR. Singh said it can similarly be laid down that lawyers can be summoned only after approval of a magistrate court.
Attorney General R Venkataramani said it will amount to giving a 'long rope. That may not be required'. He said he will submit his views including 'where the line should be drawn'.
Solicitor General Tushar Mehta said he should never be called for giving a professional opinion.
He said that if a lawyer commits an offence, no exceptions should apply. Agreeing, the CJI said, 'You were referring to a lawyer advising how to dispose of a dead body or fabricate evidence. That will be covered by section 201 IPC (causing disappearance of evidence).'
On the suggestion for a court approval to issue summons to lawyers, the SG said, 'Some separate regime being provided for one class of people may not withstand Article 14.'
The CJI, however, pointed out that the ruling in the Jacob Mathew case also creates a separate class and asked the SG, 'Have you sought a review of the judgement?'
Mehta said he was not opposing the decision in Jacob Mathew.
In a note submitted to the court, the SG said, 'Whatsoever. It is unequivocally submitted that the attorney-client privilege is an important and one of the most sacrosanct principles of law and must remain so.'
'The core objective of attorney-client privilege is to promote open and frank communication, ensuring that litigants can candidly disclose all relevant information to their lawyers without fear of subsequent compelled disclosure. This uninhibited exchange is vital for advocate/lawyers to provide proper legal advice, which in turn encourages compliance with the law and facilitates effective legal representation. This protection encourages transparency in the legal advice process, fosters respect for the rule of law, and enhances the adversarial system by ensuring that parties can prepare their cases without fear. It is pertinent to note that this privilege is to protect the litigants and at the same time, confers a qualified privilege to the lawyers.'
Mehta said 'lawyer's privilege of not disclosing his communication with his client is a recognised statutory right under Sections 126-129 of the Indian Evidence Act, 1872 [now repealed] and continues to be so under Sections 132-134 of the Bharatiya Sakshya Adhiniyam, 2023'.
He added that 'if a lawyer has participated in any act which amounts to or is a subject matter of an offence, beyond his professional duty, the same law which applies to others will apply to lawyers also'.