Summary: This blog examines the legal position regarding legal privilege under Evidence law and discusses instances where enforcement agencies have summoned lawyers, along with the recent observations of the Supreme Court on the subject.
Introduction
Attorney-client privilege ensures that any professional communication between a client and his/ her advocate remains protected and confidential. This privilege extends to conversations (both written and oral) and documents shared between a client and the attorney, and it remains protected until privilege is expressly waived by the client. Such communications are always marked “privileged and confidential”.
However, enforcement agencies in India have in recent times summoned advocates, asking them to reveal client communications or respond to questions basis such communication. Few notable instances include the Enforcement Directorate (“ED”) issuing summons to Senior Advocates Arvind Datar and Pratap Venugopal, and the Gujarat Police issuing summons to Advocate Ashwinkumar Prajapati.
In this blog, we discuss the legal position on this issue and bring to light the recent observations of the Supreme Court in its order dated June 25, 2025.[1]
Section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (“BSA 2023”)[2]
In India, legal privilege finds statutory backing in Section 132 of the BSA 2023, which states that no advocate shall, at any time, unless with his client’s express content,
- disclose any communication made by the client to him in the course of and for the purpose of service of such advocate, by or on behalf of his client, or
- state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional service, or
- disclose any advice given by him to his client in the course and for purpose of such service.
This is subject to two exceptions, namely:
- communications made in furtherance of any illegal purposes, and
- any fact observed by any advocate in the course of his service as such, showing that any crime or fraud has been committed since the commencement of his service.
Interpretation of Courts
In Supdt. & Remembrancer of Legal Affairs v. Satyen Bhowmick[3], the Magistrate directed a lawyer to produce his notebook to determine whether it contained only summaries of evidence or full statements in extenso, which the lawyer refused. The Supreme Court held that the refusal to show the register by the lawyer on the ground that the register in which he had taken down the notes of evidence also contained certain instructions given to him which amounted to a privileged communication under Section 126 of the Evidence Act, was valid.
In K. B. Poondacha v. K.D. Ganapathi[4], the Supreme Court held that the relationship between a lawyer and his client is solely founded on trust and confidence, and a lawyer cannot pass on confidential information to anybody. Client-attorney privilege is based on the principle that a lawyer serves as a fiduciary for his client. The client reposes trust and confidence in the lawyer, which establishes a duty on the lawyer to fulfil all his obligations towards the client with care and act in good faith.
The Bombay High Court at Goa, in A.V. Pavithran v. CBI[5], stated that there is a public purpose behind enactment of Section 126 of Evidence Act and any insistence on the part of any investigating agency that a lawyer acts contrary to the obligation imposed upon him by Section 126 would not be appropriate or even permissible. They held that, “the rule is ‘once privileged, always privileged’ and the legal adviser is not to disclose the communication even when the relationship is ended or even after the client’s death.”
In Nishikant Dubey v. State of Jharkhand[6], the Jharkhand High Court held that Section 132 of BSA 2023, which is in pari materia of Section 126 of the Evidence Act, 1872, protects both, the party and the counsel. The protective umbrella under this section saves the counsel from unwanted and unnecessary proceedings. Further, the Court observed that, “in case, proceedings are also taken against the lawyer for the acts or omission committed by their clients, no lawyer would be able to discharge his function without fear. This is an independent profession and as such, the lawyer should be permitted to discharge his function without any external pressure.”
Supreme Court Order dated June 25, 2025
The Supreme Court in A. G. Prajapati v. State of Gujarat.[7] was hearing a Special Leave Petition (“SLP”) filed against the order of the Gujarat High Court. The Petitioner’s client was arrested in Ahmedabad pursuant to an FIR filed on account of a loan default. Following the arrest, the Petitioner had filed a bail application in the Sessions Court in Ahmedabad, which was duly considered by the Court and bail was granted. Soon, the Petitioner was served a notice under Section 179 of the Bhartiya Nagrik Suraksha Sanhita, 2023, to appear before the Assistant Commissioner of Police to help understand the ‘true details and facts of the circumstances’. The Petitioner challenged the said notice in the Gujarat High Court. The Gujarat High Court dismissed the petition, stating that the Petitioner was summoned only in his capacity as a witness and that investigating authorities had such powers.
Aggrieved by the order, the Petitioner filed a SLP in the Supreme Court. The Petitioner argued that he was merely acting in his capacity as an advocate to his client and was neither an accused nor a witness to the crime. He argued that the summons issued to him were violative in nature as the communications between his client and him were privileged under Section 132 of the BSA 2023 and accordingly, he was dutybound to keep these conversations confidential. He could not disclose such conversations to the investigating authorities as it would violate his professional duty of confidentiality. It was further argued that summoning of counsels/ advocates on cases involving their clients would be a grave violation of rights of legal professionals as well as hamper the process of administration of justice.
The Supreme Court agreed with the Petitioner’s arguments and opined that lawyers have certain rights and privileges, which they are granted by the legal profession and legal statutes. It was held that issuing summons to lawyers in cases where they are representing a client are violative of such rights and privileges and could hamper legal professionals from discharging their duties. Such summons also undermine the autonomy of the legal system and pose a ‘direct threat to the independence of the administration of justice’. The Supreme Court further noticed that lawyers were being summoned in many other instances and hence felt the need to thoroughly examine this issue. In view of the same, it issued a notice to various legal adversaries, like Attorney General for India, Solicitor General of India, the Chairman of the Bar Council of India, the President/Executive Committee of the Supreme Court Bar Association and the President/Executive Committee of the Supreme Court Advocates-on-Record Association, to assist the Court in addressing this moot question. The Supreme Court framed the following two key issues and requested the legal adversaries, along with the Chief Justice of India to issues directives on it:
- When an individual is involved with a case solely as a lawyer advising the party, can Investigating Agencies/Prosecuting Agencies/Police directly summon the lawyer for questioning?
- If the Investigating Agencies/Prosecuting Agencies/Police believe that an individual’s involvement extends beyond acting solely as a lawyer, should they then be permitted to issue summons directly, or should judicial oversight be prescribed in such exceptional cases.
In the interim, the Supreme Court stayed the notice issued to the Petitioner and restrained investigating authorities from issuing any further notices to the Petitioner. A three-judge bench of the Supreme Court, including the Chief Justice of India, has also taken a suo moto cognizance[8] of the issue recently and the matter is currently sub judice before the Bench.
Our Views
The Supreme Court has the golden opportunity to lay down the law to keep investigating agencies’ overreach under check, which directly undermines the legal profession and administration of justice. It could also be viewed as an interference of the executive in judicial functions. It needs to be clear that if a lawyer is advising a party in his capacity as a lawyer, then no investigating agency can summon him for questioning. Secondly, under exceptional circumstances, where a lawyer’s role extends beyond providing legal advice, any summons should be issued only with judicial oversight from a superior court, i.e., the High Court or the Supreme Court. Also, this must be permitted only in the rarest of the rare cases. It appears from the interim order of the Supreme Court that the issue will finally be resolved when the judgement in this case is pronounced.
[1] Ashwinkumar Govindbhai Prajapati v. State of Gujarat & Anr., Special Leave to Appeal (Crl.) No(s).9334/2025
[2] Section 126 of the erstwhile Evidence Act, 1872.
[3] (1981) 2 SCC 109.
[4] (2011) 12 SCC 600.
[5] 2024 SCC OnLine Bom 1158
[6] WP No. 56 of 2024, Jharkhand High Court
[7] Special Leave to Appeal (Crl.) No(s).9334/2025, order dated June 25, 2025.
[8] In re: Summoning Advocates who give Legal Opinion or Represent Parties During Investigation of Cases and Related Issues, SMW(Crl) No. 2/2025
