The Supreme Court of India recently ruled that investigating agencies cannot routinely summon advocates merely for representing or advising their clients. The Court held that lawyers enjoy constitutional protection under Articles 19(1)(g) and 21, and professional communications with clients are privileged. Summons can only be issued under narrow exceptions enumerated in Section 132 of the Bharatiya Sakshya Adhiniyam (BSA), 2023, and even then, require prior approval from a senior officer (not below Superintendent of Police) and must specify the grounds clearly.

Key points from the Supreme Court ruling include:

• Advocates cannot be summoned simply for giving legal opinions or representing clients in cases.
• Investigating agencies cannot directly summon lawyers except under the exceptions listed in Section 132 BSA.
• Full-time salaried in-house counsel do not enjoy the same privileges under the Advocates Act and BSA.
• If summons are issued invoking exceptions (e.g., if the communication is allegedly used for committing or concealing a crime), this must be subject to prior judicial or supervisory approval, with clear reasons given in writing.
• The protection is to ensure the independence of the legal profession and uphold the confidential attorney-client relationship.
• The Court emphasized judicial oversight in any case where lawyers are summoned owing to exceptional circumstances.
• The ruling arose from concerns when agencies like the Enforcement Directorate issued summons to senior advocates, which was widely challenged as threatening legal independence.

In summary, advocates cannot be summoned by agencies merely for their role as legal representatives or advisors except under strictly controlled conditions with high-level approval and judicial scrutiny as per the Supreme Court's recent clarifications in 2025.
 
What exceptions under Section 132 BSA allow summoning advocates?

The exceptions under Section 132 of the Bharatiya Sakshya Adhiniyam (BSA), 2023, which allow investigating agencies to summon advocates, are strictly limited. According to the Supreme Court's 2025 ruling:

• Summoning advocates is permissible only when the professional communication or legal advice was made in furtherance of an illegal purpose.
• When there is evidence of a crime or fraud committed during the course of the advocate's engagement, whether noticed at the instance of the client or otherwise.
• Summons under these exceptions can be issued only with prior approval from a senior officer not below the rank of Superintendent of Police, who must record satisfaction in writing regarding the applicability of the exception.
• The summons must explicitly state the facts and circumstances on which the exception is based to allow for judicial review.
• In-house counsel do not enjoy privileges under Section 132 BSA, as they are not advocates practicing in courts, though they may have protections under Section 134 for communication with their employer.
• These exceptions aim to protect the independence of the legal profession and uphold the confidentiality of advocate-client communications except in narrowly defined cases involving unlawful conduct.

Thus, the Court prohibits routine summoning of advocates merely for representing or advising clients, imposing safeguards to prevent misuse of investigative powers against legal professionals except under these defined exceptional circumstances.

How in?house counsel communications differ under Section 134 BSA?
Under Section 134 of the Bharatiya Sakshya Adhiniyam (BSA), 2023, communications between in-house counsel and their employers are treated differently from those of practicing advocates under Section 132 BSA.

Key points regarding in-house counsel communications under Section 134 BSA:

• In-house counsel do not enjoy the same privilege as advocates who practice in courts because they are considered employees rather than independent legal practitioners.
• Section 134 provides protection for communications between in-house counsel and their employer, but this protection is limited to confidentiality and does not extend to the professional privilege that practicing advocates enjoy under Section 132.
• The communication privilege for in-house counsel is mainly focused on protecting internal legal advice within an organization, but it can be breached if there is evidence that the communication is in furtherance of a crime or illegal act.
• The Supreme Court clarifies that this distinction is meant to balance the need for confidentiality within corporate legal advice while enabling investigating agencies to access relevant information when justified.
• Thus, in-house counsel's communications have a narrower scope of protection compared to external advocates' communications, reflecting their dual role as both legal advisors and company employees.

In summary, Section 134 BSA protects in-house counsel communications within the employer-employee relationship but does not grant them the full advocate-client privilege under Section 132, especially when such communications are implicated in unlawful activities.
 

Download Pdf