In a significant ruling safeguarding the sanctity of client-advocate privilege, the Supreme Court of India has issued a detailed set of directions to ensure that investigating agencies and litigating parties do not encroach upon the professional confidentiality between an advocate and their client.
A three-judge Bench comprising Chief Justice B.R. Gavai, and Justices K. Vinod Chandran (authoring the judgment) and N.V. Anjaria emphasized that Section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) codifies the principle of professional privilege — a legal protection vested in the client and enforced through the advocate’s duty of non-disclosure.
The case originated from a criminal complaint filed at Odhav Police Station, Ahmedabad, concerning a loan dispute. An FIR was registered under various provisions of the BNSS, the Gujarat Money-Lenders Act, 2011, and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
After the accused was arrested, the petitioner advocate represented him in bail proceedings, which were allowed. Subsequently, the Assistant Commissioner of Police, Ahmedabad, issued a notice under Section 179 BNSS summoning the advocate “to know true details of the facts and circumstances after making your inquiry.”
The advocate challenged this before the Gujarat High Court, which refused to intervene, holding that there was no infringement of fundamental rights since the summons was issued in the capacity of a witness. Aggrieved, the advocate approached the Supreme Court.
The Division Bench, while referring the matter to a larger Bench, sought clarity on two crucial issues:
Firstly, can an investigating or prosecuting agency directly summon a lawyer who has only acted as legal counsel in a case?
Secondly, if the agency claims the lawyer’s role extends beyond legal representation, should there be judicial oversight before such a summons is issued?
During the hearings, multiple senior lawyers and bar associations intervened, raising serious constitutional and professional concerns. They contended that such summonses undermine:
- The right to practice law under Article 19(1)(g),
- The right to privacy and dignity under Article 21, and
- The statutory privilege under Sections 132–134 of the BSA and the Advocates Act, 1961.
The controversy also gained attention in light of recent incidents where the Enforcement Directorate (ED) had issued summonses to two senior advocates of the Supreme Court, later withdrawing them and revising internal guidelines mandating Director-level approval for such actions.
The Bench began its reasoning by invoking Shakespeare’s Henry VI, Part II, quoting the famous line, “The first thing we do, let’s kill all the lawyers.”
The Court underscored the “onerous responsibility” borne by advocates to uphold justice while maintaining absolute confidentiality in communications with their clients.
It reaffirmed that the privilege under Section 132 BSA belongs to the client, but the advocate has a corresponding duty — and right — to assert it on the client’s behalf.
Exceptions to this privilege arise only when there is Client consent or waiver, Use of legal advice to further an illegal purpose, or Observation of a crime or fraud by the advocate during engagement.
Even where an accused confesses to a lawyer, the Court clarified, it does not amount to an “extra-judicial confession”. Hence, no incrimination can result merely from professional communications with counsel.
Directions Issued by the Court
The Supreme Court issued comprehensive procedural safeguards to prevent misuse of investigatory powers:
- Summons to Advocates
- Investigating Officers (IOs) or Station House Officers cannot summon an advocate representing an accused merely to extract details of the case.
- A summons may only be issued if it falls within the exceptions under Section 132 BSA, with written approval and recorded satisfaction by a superior officer not below the rank of Superintendent of Police.
- Such summons must explicitly state the facts and reasons for invoking an exception and are subject to judicial review under Section 528 BNSS.
- Production of Documents
- Privilege does not extend to documents held by the client or advocate.
- In criminal cases, such production must be made before the jurisdictional court under Section 94 BNSS, guided by Section 165 BSA.
- The court will decide objections regarding admissibility after hearing both the advocate and client.
- Digital Devices
- If an IO directs production of a digital device under Section 94 BNSS, it must be produced before the court only, not before the police.
- The court shall notify the concerned party, allow them to object, and if objections are overruled, examination shall occur in the presence of the advocate, client, and a technical expert of their choice.
- The court must ensure no breach of confidentiality concerning other clients’ data.
- In-House Counsel
- The Court held that in-house legal advisors are not “advocates” within the meaning of Section 132 and therefore cannot claim privilege.
- However, Section 134 BSA protects communications made to such legal advisors by their employer.
The Court held that the summons issued to the petitioner advocate was illegal, as it violated Section 132 BSA and sought to compel disclosure of privileged communications.
The Bench expressed dismay at the Gujarat High Court’s refusal to intervene, remarking:
“We are surprised that the High Court, being a Constitutional Court exercising jurisdiction under Section 528 BNSS, refused to interfere.”
Rejecting the need for new guidelines or a special committee, the Court stated that the existing statutory framework in Sections 132–134 BSA and Section 528 BNSS provides sufficient judicial oversight.
It further cautioned law enforcement authorities, “Gallant Investigating Officers must refrain from impulsively transgressing the privilege under Section 132, lest they violate statutory provisions and the fundamental rights of the person represented by the advocate.”
Case Details
IN RE: Summoning Advocates who give legal opinion or represent parties during investigation of cases and related issues
Case No.: Suo Motu Writ Petition (Criminal) No.2 of 2025
Date: 31/10/2025
