IN THE SUPREME COURT OF INDIA ORIGINAL APPELLATE JURISDICTION
Suo Motu Writ Petition (Criminal) No.2 of 2025
IN RE: Summoning Advocates who give legal opinion or represent parties during investigation of cases and related issues.
with Writ Petition (Civil) No. 632 of 2025 and Special Leave Petition (Criminal) No. 9334 of 2025
- Core Issue: The Court examined the circumstances under which police/investigating agencies can summon an advocate who is representing a party in a case, particularly concerning the attorney-client privilege under Section 132 of the Bhartiya Sakshya Adhiniyam (BSA), 2023.
- Fundamental Principle: The Court strongly reaffirmed the sacrosanct nature of attorney-client privilege. This privilege, which protects confidential communications between a lawyer and client, is essential for the administration of justice and is a fundamental tenet of the legal system.
- Ruling on Summons:
- An advocate cannot be summoned merely to elicit facts and details of the case from them. The summons challenged in this case, which sought to “know true details of the facts,” was declared illegal.
- However, an advocate can be summoned if the investigation pertains to one of the exceptions under Section 132 BSA (e.g., communication made in furtherance of an illegal purpose, or observation of a crime/fraud committed during the engagement).
- Safeguards Introduced: While the Court declined to create extensive new guidelines or a peer-review committee, it laid down specific procedural safeguards for summons issued under the exceptions:
- The summons must explicitly state the facts and reasons for invoking the exception under Section 132.
- It requires the prior written approval of a senior police officer (not below the rank of Superintendent of Police).
- Such a summons is subject to judicial review by the courts.
- Production of Documents & Digital Devices:
- The privilege under Section 132 does not apply to the production of documents. Lawyers or clients can be compelled to produce documents, but any objections to admissibility will be decided by the court.
- For digital devices, a specific procedure is mandated: production must be before the court, which must hear objections from the advocate and client. Examination must be done in their presence with a technical expert to protect data related to other clients.
- In-House Counsel: The Court ruled that in-house counsel (full-time salaried employees) are not entitled to claim the attorney-client privilege under Section 132 BSA, as they do not meet the definition of an independent “Advocate.”
