The matter is titled IN RE: Summoning Advocates who give legal opinion or represent parties during investigation of cases and related issues, with the citation 2025 INSC 1275.
Factual Background
This Supreme Court matter originated from a reference made in a Special Leave Petition challenging a notice issued by an Assistant Commissioner of Police (the Investigating Officer, or I.O.) against an Advocate. The Advocate had successfully filed a regular bail application for an accused in a case involving alleged breach of a loan agreement, the Gujarat Money-Lenders Act, 2011, and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Subsequently, the I.O. directed the Advocate to appear under Section 179 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) to “know true details of the facts and circumstances” of the case. The High Court had refused to intervene, stating the Advocate’s non-cooperation stalled the investigation and that the summons was properly served in the capacity of a witness under BNSS Section 179. Due to the serious questions regarding the extent of the lawyer-client privilege under Section 132 of the Bhartiya Sakshya Adhiniyam (BSA), a two-Judge Bench referred the matter to the Supreme Court.
Issue(s)
The Supreme Court primarily addressed two questions of “utmost public importance”:
- Could the Investigating Agency, Prosecuting Agency, or Police directly summon a lawyer solely for advising the party in a case?
- If the Investigating Agency suspects the lawyer’s role is “something more” than professional counsel, should judicial oversight be required before issuing a summons?
Decision of the Supreme Court
The Supreme Court answered the first question with an emphatic “NO”. The Court ruled that investigating agencies cannot summon a lawyer appearing in a case to elicit case details. The Court set aside the specific summons that led to the reference. For the second question, the Court was not convinced that new guidelines were necessary, holding that sufficient judicial oversight is already provided under Section 528 of the BNSS to challenge such summons. The Court further clarified that In-house counsel are not entitled to the privilege under Section 132 of the BSA.
Reason for the Decision
The decision rests on the “sacrosanct” nature of the lawyer-client privilege codified in Section 132 of the BSA. This statutory privilege is fundamentally a protection conferred upon the client. Coercing an Advocate to disclose privileged communication violates Section 132 and infringes upon the client’s constitutional rights, including the protection against self-incrimination (Article 20(3)) and the right to effective legal representation (Article 21). The Court found no legislative vacuum comparable to the situations in Vishaka or Jacob Mathew that would compel the Court to issue new guidelines under Article 142. Instead, the Court asserted that the power to summon under BNSS Sections 175 and 179 is not an absolute power and must be exercised while respecting the limits and exceptions of BSA Section 132. Any summons issued to an Advocate must explicitly state the facts that rely on one of the exceptions carved out in Section 132. Furthermore, this action must be done with the approval and recorded satisfaction of a hierarchical Superior, not below the rank of Superintendent of Police.
Conclusion
The Court disposed of the matter by issuing specific directions to safeguard the attorney-client privilege. It confirmed that investigating officers must not summon Advocates to know case details unless the situation clearly falls under a statutory exception in Section 132 BSA. Such a summons must be approved by a superior officer (SP rank or above) whose reasons must be recorded in writing. The judgment cautioned investigators against transgressing this privilege, noting that doing so violates statutory law and infringes upon the client’s fundamental rights. Finally, the Court confirmed that the privilege under Section 132 does not apply to In-house counsel, as their salaried employment status compromises the professional independence required for the privilege.
