Supreme Court’s strictures against summoning lawyers are backed by precedents

On 25 June, Justices K.V.Viswanathan and N.K.Singh stayed a police summons issued to a lawyer in Ahmedabad. The Partial Court Working Days Bench directed that the matter be placed before the Chief Justice to determine the scope of judicial oversight in instances where lawyers are directly summoned by law enforcement bodies for discharging their professional duties. 

Witness or professional service provider?

The Bench was hearing Ashwinkumar Govindbhai Prajapati v State of Gujarat. In this case, the petitioner, a practising advocate, had filed an application for regular bail on behalf of his client. The client was arrested on 25 February in a loan repayment case. The Sessions Court at Ahmedabad had granted him bail. 

On 24 March, a notice was served to the advocate under Section 179 of the Bharatiya Nagarik Suraksha Sanhita, 2023. He was asked to appear at the office of the Assistant Commissioner of Police, SC/ST at Ahmedabad, to “know the true details of facts and circumstances” of the case. 

Curiously, the Gujarat High Court dismissed the petitioner’s challenge to the notice. It noted that the petitioner was summoned in the capacity of a witness. Therefore, the authorities had the power to summon and investigate him. The High Court also observed that there had been no violation of the petitioner’s fundamental rights. But its order remained silent on the authorities’ non-compliance with Section 132 of Bharatiya Sakshya Adhiniyam (BSA) (explained later in this article). 

Legal profession “integral” to administration of justice

The Supreme Court found merit in the submission that the notice impinged upon the rights of the advocate. They also said that such summons severely threatened the autonomy of the legal profession. 

The Bench stressed the need to address the issue comprehensively, noting that subjecting a counsel in a case to the beck and call of agencies “prima facie appears to be completely untenable.” The judges issued notice to the Attorney General, Solicitor General, Chairman, Bar Council of India, Supreme Court Bar Association and the Supreme Court Advocates-on-Record Association to assist the Court in the case. The Bench directed that the matter be placed before the Chief Justice for his directions on a comprehensive hearing and stayed the summons issued to the petitioner by the Gujarat police. 

Relevance of case law 

Section 132 of the BSA requires a client’s explicit consent before any communication made to an advocate during the course of professional service can be disclosed. There are two exceptions to this rule. First, if the communication was made in furtherance of an illegal purpose. And second, if the advocate, while acting in a professional capacity, observes facts indicating that a crime or fraud has been committed after the start of the engagement. The explanation to the provision clarifies that this duty of confidentiality continues even after the professional relationship ends. Sub-section (3) extends this protection to interpreters, clerks, and other employees of the advocate.

Case laws on Section 132 of BSA and its previous avatar, Section 126 of the Indian Evidence Act, 1872, have dealt with several situations concerning the confidentiality of communications between a lawyer and their client. The issue of summons from investigating agencies is just one among them to recently earn the Courts’ strictures. Courts have, for instance, disapproved of naming the lawyer of the opposite party as a witness and forcing a lawyer to withdraw because they had appeared for the opposite party in a previous unconnected case.

Whatever the issue, a common thread in the case law is the court’s emphasis on the role of the lawyer as a fiduciary of their client, based on the principles of uberrima fides. 

Back in 1981, in Superintendent and Remembrancer of Legal Affairs, West Bengal v Satyen Bhowmick, the Supreme Court upheld the decision of a Magistrate who had declined to take action against a defence lawyer. The lawyer had refused to produce his register, which contained instructions from his client. The Court also found no impropriety in the lawyer’s refusal to share statements of witnesses that he had recorded in full, as these were prepared to aid effective cross-examination.

Recently, in Smt. Lavanya C v Vittal Gurudas Pai (2025), the appellants had alleged that their counsel had given an undertaking without express authorisation. The Court held that an advocate could not submit an undertaking without the consent of the client.

The Bench of Justices Pankaj Mithal and Sanjay Karol reiterated that the relationship between a lawyer and their client is solely founded on trust and confidence. They relied on Kokkanda B.Poondacha v K.D. Ganapathi (2011), which had held that a lawyer could not pass on confidential information to anyone else.

Part of the jurisprudence on the fiduciary relationship between a lawyer and a client also comes from the High Courts. 

In Nishikant Dubey v State of Jharkhand (2024), Justice Sanjay Kumar Dwivedi of the Jharkhand High Court described Sections 126 of the Indian Evidence Act and 132 of BSA as a “protective umbrella” which saves the counsel from unwanted and unnecessary proceedings. 

“The counsel is only carrying the brief of the client and has no personal interest in the matter, being a member of the legal profession and the society considers him as indispensable,” the judge wrote. He added that a lawyer could not be seen to partake in the crime or offences committed by the party. “In case proceedings are also taken against the lawyer for the acts or omissions committed by their clients, no lawyer would be able to discharge his function without fear,” the High Court said. 

In A.V. Pavithran v CBI (2024), the Bombay High Court was faced with a similar factual matrix as the present case from the Gujarat High Court. The petitioner was a practising advocate of the Bombay High Court at Goa. He approached the High Court challenging a notice issued to him under Section 160 of the Code of Criminal Procedure, 1973. The notice, served by the Inspector of Police of the CBI’s Anti-Corruption Branch in Goa, required him to appear at the CBI office to answer certain questions in a case where his former client was named as an accused.

The High Court held that if communications to a legal adviser were not privileged, a person would be deterred from fully disclosing their case to obtain proper professional aid and is likely to be thrown into litigation. Section 126 not only protects the legal adviser from disclosing communications made to him by his client when interrogated as a witness. It also did not permit him to willingly give evidence unless with the express consent of his client.

“The legal adviser is not to disclose the communication even when the relationship is ended or even after the client’s death. The rule is ‘once privileged, always privileged’…Deference to Section 126 of the IEA does not amount to interference with investigations”.

In M/s Praram Infra Through Its Partner Shri Prayank Jain v The State of Madhya Pradesh (2024), the Madhya Pradesh High Court at Indore too made similar observations. Advocate Rahul Maheshwari challenged the notice issued to him by the Deputy Commissioner of Police. Maheshwari was asked to appear and give samples of his signatures during the investigation of a case in which he had appeared for the complainant. Although the police withdrew their notice later, the High Court still quashed it, relying on the Bombay High Court’s ruling in A.V. Pavithran. 

The larger picture

The Supreme Court’s observations come at a time when the Court is already confronted with a similar malaise facing the legal profession. 

Last month, the Supreme Court Advocates-on-Record Association (SCAORA) had urged the Chief to invoke suo moto jurisdiction after the Enforcement Directorate (ED) had issued summons to Senior Advocates Arvind Datar and Pratap Venugopal. Both senior lawyers were appearing as counsel for parties being investigated by the ED. The ED’s summons drew sharp reactions. 

The Supreme Court Bar Association (SCBA) and several bar associations across the country passed resolutions condemning the ED’s action as “perverse” and “intimidating.” 

The ED later withdrew the summons and issued a circular instructing its officials not to summon advocates in violation of Section 132 of the BSA. But many have viewed the episode as a clear instance of executive overreach. The controversy is unlikely to die down until the Court steps in to lay down clear and effective guidelines to prevent such instances in the future.