Summoning Advocates who give legal opinion or represent parties during investigation of cases and related issues, Suo Motu Writ Petition (Crl.) No.2 of 2025; Writ Petn. (C) No.632/2025; SLP (Crl.) No.9334/2025 — Bench: CJI B. R. Gavai, K. Vinod Chandran & N. V. Anjaria, J. — New Delhi, 31 October 2025. (Reported as 2025 INSC 1275)
Facts:
Investigating Officer (I.O.) issued summons under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS/BSA) to an Advocate who was representing an accused, directing appearance “to know true details of the facts and circumstances.” High Court declined relief. Matter referred to this Court suo motu to consider whether and when investigating agencies may directly summon counsel engaged for a party, and whether judicial/peer oversight is required.
Issues:
Whether an investigating/prosecuting agency or police can directly summon an Advocate who is associated with a case only as a lawyer advising/representing a party.
If the agency has reason to believe the individual’s role is beyond professional, whether summons should be allowed only after prescribed judicial oversight (e.g., committee/Magistrate approval).
Related issues: production/seizure of documents and digital devices; status of in-house counsel; need for court-made guidelines.
Held (Short):
Yes — NO (emphatic) to direct summoning of advocate to elicit case details merely because she/he appears for a party. Investigating agencies cannot issue such summons unless the request falls within the exceptions to Section 132 of the BSA; when a summons is issued under an exception it must (a) specify the facts on which the exception is invoked, (b) be approved in writing by a superior officer not below the rank of Superintendent of Police, and (c) remain subject to judicial review under Section 528 of the BSA. Production of documents is not protected by Section 132 and must be produced before the Court under Section 94; digital devices produced must be handled only before the Court with safeguards to protect other clients’ confidentiality and with expert assistance. In-house counsel are not entitled to privilege under Section 132. The Court declined to frame overarching guidelines or constitute a peer committee under Article 142 as unnecessary/undesirable in the statutory frame.
Key Ratios / Principles:
Attorney-client privilege (s.132 BSA / s.126 Evidence Act) is a client-centred privilege; an Advocate may invoke it even in the absence of client consent. Exceptions are limited and must be specifically pleaded.
An I.O.’s statutory power to summon (ss.175, 179 BNSS) is not a licence to circumvent s.132; the power to summon is subject to the evidentiary privilege and constitutional protections (Article 20(3), right to counsel).
Where an exception to privilege is relied upon, the facts constituting that exception must be stated in the summons and approved by a senior officer (≥ SP) in writing — a pre-condition of lawful summons.
Production of documents held by counsel is governed by Section 94 (and related evidence provisions); privilege does not extend to physical production of documents (court decides admissibility after hearing).
Digital devices: production only before Court; Court must notify and hear affected parties; device to be opened in presence of party, counsel and a technical expert of their choice; discovery limited to what is permissible and admissible; preserve confidentiality of other clients.
In-house counsel (full-time salaried employees) do not attract Section 132 privilege (though Section 134 protections may apply in certain respects).
No separate class/vehicle (peer committee / Magistrate pre-clearance) should be imposed by judicial fiat that would tend to frustrate lawful investigation or impair client interests; statutory and judicial remedies (Section 528 review) suffice.
Directions (Operative):
I.O.s/SHOs shall not issue summons to an Advocate representing a party to elicit case facts unless the matter squarely falls within the exceptions in Section 132.
Any summons issued under an exception must explicitly specify the factual basis for relying on the exception and must be approved in writing by a superior officer not below the rank of Superintendent of Police who records satisfaction and reasons.
Such summons are subject to judicial review under Section 528 of the BSA.
Production of documents in counsel’s possession must be in compliance with Section 94 (production before Court); in Court the advocate and client will be heard on objections.
If a digital device is produced, it shall be produced before the jurisdictional Court; Court shall issue notice to affected parties, hear objections, and — if overruled — open/examine the device only in the presence of the party, the advocate and any technical expert engaged by them. Discovery shall be confined to the material admissible/required and care shall be taken not to impair confidentiality of other clients.
In-house counsel are not covered by Section 132 privilege for communications with their employer.
Practice note / implications:
The judgment reinforces the primacy of statutory privilege and constitutional protections (esp. Article 20(3) and right to counsel) against administrative overreach by investigative agencies.
Investigative agencies must adopt stricter internal checks (written approval at senior level) and ensure summons recite specific facts justifying an exception; absent that, the summons are vulnerable to quashing via Section 528.
Courts receiving production orders for digital devices must adopt careful procedures (notice, technical assistance, limited review) to avoid collateral disclosure of unrelated client material.
Corporate counsel and in-house teams should not assume Section 132 protection; corporate privilege and operational confidentiality should be managed accordingly.
summary of judgment
The Supreme Court protects attorney-client confidentiality in investigations while balancing the State’s power to investigate cognizable offences — insisting on statutory adherence (specific pleading of exceptions and senior supervisory clearance) and judicial oversight, but refusing to create a parallel pre-screening committee under Article 142.
2025 INSC 1275
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Suo Motu Writ Petition (Crl.) No. 2 of 2025 & Ors.
Reportable
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
J U D G E M E N T
K. VINOD CHANDRAN, J.
“The first thing we do, let’s kill all the lawyers”
Henry VI pt. II scene 2 Act IV
Often spoken with a negative connotation, the context
in which the above words were spoken in William
Shakespeare’s historical play indicates it to be otherwise.
Dick the Butcher, who spoke these words in the play;
henchman of Jack Cade who was chosen to foster revolt,
described by the Bard of Avon himself as ‘a demagogue
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pandering to the ignorant’, was not championing liberty, free
thought or independent choices. The scene itself ends with a
law clerk being sentenced to hang for being literate and
informed in law. Emphasising the function of the lawyer as a
guardian of freedom, especially in the context of the above
statement ‘… being made by a rebel, not a friend of liberty’(sic)
Stevens J. in his dissenting opinion in Walter v. Nat. Assn. of
Radiation Survivors1 observed that the above text will reveal
that “Shakespeare insightfully realized that disposing of
lawyers is a step in the direction of a totalitarian form of
government.”
The Background:
2. The above matter arises out of a reference made by a
Bench of two learned Judges of this Court in a Special Leave
Petition filed against a notice issued against an Advocate
under Section 179 of the Bharatiya Nagarik Suraksha Sanhita,
20232
. Pursuant to an agreement relating to a loan and its
1 473 U.S. 305 (1985)
2
for short, the BNSS
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breach, an FIR was lodged at the Odhav Police Station,
Ahmedabad, Gujarat under various provisions of the BNSS
read with the provisions of the Gujarat Money-Lenders Act,
2011 and the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989. The accused was
arrested, and the petitioner in SLP (Crl.) Diary No.33845 of
2025, an Advocate, filed a regular bail application for the
accused before the learned Sessions Judge at Ahmedabad
which was allowed. Subsequently, the impugned notice was
issued, wherein after referring to the complaint and the
accused arrayed, the Assistant Commissioner of Police,
Ahmedabad, the Investigating Officer3
, directed the
appearance of the Advocate within three days from the date
of receipt of notice so as to ‘know true details of the facts and
circumstances after making your inquiry’ (sic). The petitioner
Advocate moved the High Court which rejected the
application on the ground that the petitioner did not respond
to the summons and his non-cooperation resulted in the
3 hereafter, the ‘I.O.’
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investigation being stalled. It was opined that there was no
violation of fundamental rights, since the summons was
served under Section 179 of the BNSS in the capacity of a
witness by an officer conferred with the power to investigate.
The learned Judges of this Court who heard the S.L.P. against
the order of the High Court were of the opinion that two
questions arise of utmost public importance, as to under what
circumstances an investigating agency can directly issue a
summons to question a counsel who is appearing for a party
in a given case, especially under the rigour of Section 132 of
the Bhartiya Sakshya Adhiniyam, 20234 corresponding to
Section 126 of the Indian Evidence Act, 1872.
3. The questions which among others, that arise, as
emphasised in the reference order are as follows: -
(i) When an individual has the association with a
case only as a lawyer advising the party, could the
Investigating Agency/Prosecuting Agency/Police
directly summon the lawyer for questioning?
(ii) Assuming that the Investigating Agency/
Prosecuting Agency/Police has a case that the role
of the individual is not merely as a lawyer but
something more, even then should they be directly
4
for short, ‘the BSA’
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permitted to summon or should judicial oversight
be prescribed for those exceptional criterion of
cases?
4. It was opined by the learned Judges that the above
questions along with others that may arise, should be
addressed in a comprehensive manner. The efficacy of the
administration of justice itself was found to be at stake, since
such interference with the capacity of the lawyers to
conscientiously and fearlessly discharge their professional
duties, directly impinges upon the administration of justice. It
was prima facie observed that subjecting the counsel in a case
to the beck and call of the investigating agency/prosecuting
agency/police appears to be completely untenable.
5. Before us, various intervention applications were filed
by individual Advocates & associations, especially by the
Supreme Court Bar Association, the Supreme Court
Advocates-On-Record Association and an Organisation of Inhouse Counsels as also the Bar Council of India. The
intervention applications in one voice asserts that the subject
notice issued is an unconscionable, outrageous interference
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with the right to practice, conferred on the Advocates under
Article 19(1)(g) and Article 21 of the Constitution of India,
coupled with the provisions of the Advocates Act, 1961.
Further, any interference with the obligation of nondisclosure of facts and circumstances pertaining to an alleged
crime, by an Advocate representing the accused, is against
the statutory protection conferred on the client. Serious
concerns were also raised on the backdrop of the
Enforcement Directorate (ED) having issued summons
against two Senior Advocates of this Court. When the Bar rose
up in unison against such illegality, the ED withdrew and
issued guidelines, specifically referring to the BNSS,
mandating that any summons issued under the exceptions
carved out in Section 132 shall be only issued with the prior
approval of the Director, ED. Even though, the said issue,
died down, there is prevalence of the police and investigating
agencies under the special enactments, summoning
Advocates who appear for the accused taking recourse to the
provisions under the BNSS, which per se, is illegal, since any
privileged communication under Section 132 cannot be
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disclosed without the consent of the client. In any event, the
information, if supplied, without the express consent, not only
is unworthy of use against the client by virtue also of judicial
pronouncements, but the Advocate would also be exposed to
professional misconduct for reason of disclosure and breach
of confidence. A summons to an Advocate in the course of an
investigation against a person, whom the Advocate defends;
seriously interferes with the fundamental rights guaranteed
under the Constitution to carry on a profession and cannot fall
under any of the exceptions carved out, which again would
be an infringement of the statutory obligations of nondisclosure without consent, urge the Bar.
6. We heard Mr. Vikas Singh, learned Senior Counsel &
President, Supreme Court Bar Association, Mr. Atmaram N.S.
Nadkarni, learned Senior Counsel instructed by Mr.Vipin
Nair, President, SCAORA, learned Senior Counsel: Mr.
Siddharth Luthra, Mr. Shoeb Alam and a host of Advocates
who wanted to put in their mite in protection of the profession
and the fraternity of lawyers. We also heard Mr. R.
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Venkataramani, learned Attorney General of India and Mr.
Tushar Mehta, learned Solicitor General of India for the Union
of India and the State of Gujarat.
The Bar Argues:
7. We have gone through the written submissions made,
which emphasises the obligation under Section 132 to be a
restriction on the Advocate, the breach of which would attract
a charge of professional misconduct. The protection under
Section 132 to every privileged communication between a
client and a lawyer is a protection afforded to the client,
seeking legal assistance, and there is no corresponding
statutory scheme protecting the Advocate from being
coerced into a disclosure, especially by an investigating
agency duly conferred with the power to summon witnesses
and interrogate suspects under the various enactments.
8. It is urged on the strength of the decision in Jacob
Mathew v. State of Punjab5 that professionals such as lawyers
5
(2005) 6 SCC 1
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and doctors are included in the category of persons
professing some special skills which requires, any allegation
of digression from ethical conduct or accusation of
negligence, to be examined by a group or committee of
persons having the same skills, akin to a peer review of the
complained acts or omissions in the discharge of their
professional duties. There is need for an independent body
of such professionals, who is required to look into the aspect
of existence of a liability, before any criminal proceeding is
initiated, and arrest is made of the professional. In the context
of the subject controversy, before even a summons is issued
against a lawyer who has a statutory obligation of nondisclosure of privileged communications, the principle
applies squarely.
9. Reference is also made to the guidelines issued in the
case of Vishaka v. State of Rajasthan6 wherein this Court
stepped in under Article 142 to provide comprehensive
guidelines for dealing with allegations of sexual harassment
6 AIR 1997 SC 3011
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in workplaces, the absence of which seriously infringed the
fundamental rights of the victim. The violation of fundamental
rights and the absence of a statutory scheme which prompted
this Court to lay down comprehensive guidelines, only till the
legislature brought out suitable statutory measures to curb,
alleviate and adjudicate upon such allegations, would
squarely be applicable in the present case. Here too the
fundamental right to practice of another group of
professionals is seriously infringed, with scant respect to the
privilege statutorily conferred on the communications
between a client and his Advocate. Not only does the illegal
acts of the investigating agency interfere with the right of the
accused to set up a defence, without prejudice, but also
seriously impairs the carrying on of a profession which is
categorised as the noblest of all professions, jeopardising
both the defence of the client and the professional integrity of
the Advocate.
10. Section 132 obligates absolute confidentiality on the
part of the Advocate by reason of the privilege conferred on
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the communications with the client, which privilege can be
waived only when there is an express consent by the client or
in a given case, if the exception carved out by the proviso to
Section 132 applies. The provision essentially is in the nature
of a protection of the client, an accused or a litigant, but it
does not offer any protection to the Advocate who may have
to resist coercion, especially in the circumstances that come
forth in the present case, as in a notice from the I.O, which
brings in the requirement of guidelines. This raises the
question on the power of the Supreme Court to bring in such
guidelines, especially in the context of violation of
fundamental rights and the absence of a suitable legislation,
which power definitely exists as seen from the decisions in
Jacob Mathew5 and Vishaka6.
11. The next issue would be the nature of the guidelines,
recommending a special procedure involving the Courts and
a peer-group of professionals to determine as to whether the
summons in a given case is within the scope and ambit of the
exceptions carved out in the proviso to Section 132. It is
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opined that a mere reference to a superior officer as has been
brought out by the ED would not suffice and before it is done,
the legality of the summons should be examined by a Court
of law or by a peer group constituted as a committee. On the
constitution of such a committee, a suggestion is also made
that it should be constituted at three levels, at the District, the
State and the National level with the involvement respectively
of the Principal District Judge, Chief Justice of the State and
the Chief Justice of India. Put briefly, after consent is obtained
from the superior officer, an application should be made
before the concerned Magistrate with a further requirement
of the consent being taken of a Committee, both of whom
would have to be satisfied prima facie, on the basis of the
materials produced by the I.O, on the issuance of such
summons to an Advocate appearing for the accused/litigant
in a case. It is also urged that the dominant purpose test
should be applied on the standard of preponderance of
probabilities to look into whether the summons referred to
any privileged communication between the client and the
Advocate, clearly falling within the teeth of Section 132.
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The Caveat of the State:
12. On behalf of the State, both the Attorney General and
the Solicitor General, very fairly, refused to take an
adversarial stance since the issue affects the large body of
Advocates in the Country whose voice is the voice of the
victim, the accused, the marginalised and the downtrodden.
While asserting that the attorney-client privilege is the
fundamental principle of any legal system committed to
protecting confidential communication between clients and
their legal advisors, it is pointed out that there is no
requirement for any guidelines since the matter is fully and
squarely covered by the statutory provisions which require
no elaboration. A guideline brought in would only result in
disrupting the well-crafted legislative provision which has
withstood the test of time in this Country, right from the time
of the Indian Evidence Act, 1872.
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13. It is unequivocally agreed that no Advocate can be
summoned for reason only of giving a legal opinion or
appearing for a party in a case. But the immunity with respect
to professional communications would not absolve the
liability in the event of an Advocate participating in a crime
which is beyond his professional duty. The scope and ambit
of Sections 132, 133 and 134 of the BSA, according to the State
and the Union, will have to be decided on a case-to-case basis
and there can be no overreaching guidelines which would
interfere with the statutory scheme. It is pointed out that the
earlier instance of the summons issued by the ED against the
two Senior Advocates was nipped at the bud. The mandate
issued through the circular of the Director, prohibits any
casual issuance of summons without reference to Section 132
and has brought in the mandate of an approval from the
Director itself. The contours of the privilege accorded under
Section 132 was elaborated on the strength of decisions which
provided a protection to the Advocates, only within that
provided under Section 126 of the Evidence Act and Section
132 of the BSA.
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14. The communications made in furtherance of any illegal
purpose are expressly excluded from the privilege whether
the legal advisor was a party or ignorant of the illegal object,
which is in the interest of public justice. The right of the
investigating agency, as conferred by the statute to
investigate into a cognizable offence cannot be curtailed by a
guideline issued in purported protection of Advocates under
Section 132 of the BSA. No right can be claimed by an
Advocate beyond that permitted under the provisions of nondisclosure. The investigating agency would be well within its
right to issue summons to an Advocate, as a suspect or witness
and the restriction is only insofar as the summoning of an
Advocate in his professional capacity or for inquiring into the
discharge of his professional duties, with respect to a
particular person or a specific crime, where the lawyer
represents the person or defends the accused in an alleged
crime. There cannot be claimed absolute immunity by an
Advocate merely by reason of his status of a legal advisor
when there is any act or omission under scrutiny which would
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constitute a cognizable offence as distinguished from
legitimate professional conduct.
15. A separate procedure introduced by way of a guideline
under Article 142, for Advocates would result in creation of a
separate class which would be an artificial and unjustifiable
classification, violating the mandate of Article 14. Merely for
reason of a person being enrolled as an Advocate, he would
not be insulated from ordinary legal process applicable to the
other citizens. A professional privilege cannot be abused to
obstruct the due process of law. It is vehemently asserted that
there is no legislative vacuum to persuade this Court to bring
in guidelines for the protection of lawyers based on solitary
instances of summoning of lawyers.
16. Any guidelines issued would, in fact, be counterproductive and would interfere with the powers conferred on
the investigating agency to investigate into a crime. The
vacuum which was sought to be filled by invocation of the
powers under Article 142, as has been done in D.K. Basu v.
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State of West Bengal7 and Vishaka6, does not exist in the
present case. The attorney-client privilege, as statutorily
conferred has withstood the test of time and the Courts have
zealously protected it, striking down any attempt to impinge
upon those sacrosanct privileges which is inevitable in any
justice delivery system. Once again, reiterating that there
can be no interference to the attorney-client privilege which
is recognised as a statutory right, it is asserted that the
investigating agency also cannot be prohibited from
summoning an Advocate when there is credible material
available, suggesting his involvement in a criminal act.
The Role of an Advocate:
17. Decisions galore have been pointed out and the
observations made therein, about the role of an Advocate and
the duties discharged in protection of the rights of a client, its
importance and the sanctity attached to it. Daniel Webster, a
trial lawyer of repute, famously said that, “Justice is the
greatest concern of man on earth” (sic). F. Raymond Marks in
7
(1997) 1 SCC 416
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“The Practice of Law as a Public Utility-The Lawyer, The Public
and Professional Responsibility”, wrote that “… the central
function that the legal profession must perform is nothing less
than the administration of justice” (sic-quoted in Bar Council
of Maharashtra v. M. V. Dabholkar Etc.8). It is this concern
of mankind juxtaposed with the sublime function entrusted
with the fraternity of lawyers, that makes the role of lawyers
profound and relevant in every walk of life and life itself.
There is no greater professional calling than to uphold the
rule of law in society, to bring justice equally; to the
downtrodden and the famous, the marginalised and the
privileged, the rich and the poor. To ensure fair treatment of
every gender, colour and creed, with the extending horizons
of law, to every living being and to the very earth we inhabit.
To push the frontiers of equity to make society all inclusive,
protecting not only the citizen but also the refugee. Enabling
a life with dignity to the old, the infirm, the orphaned, the
destitute and even those accused and convicted of crimes.
8
(1975) 2 SCC 702
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Apt is the observation of Alexis de Tocqueville about the
profession of law that, it “… is the only aristocratic element
which can be amalgamated without violence with natural
elements of democracy…I cannot believe that a republic could
subsist at the present time if the influence of lawyers in public
business did not increase in proportion to the power of the
people” (sic-quoted in M. V. Dabholkar Etc.8).
18. The role of lawyers in society and the discharge of their
duties in prosecution or in defence, in establishing rights or
defending against infringements, cannot at all be discounted.
This is the reason why Section 126 in the Evidence Act was
introduced and by Section 132, the said privilege, was
retained in the BSA, protecting the communications between
a lawyer and a client as sacrosanct, ensuring every
opportunity as available in the legal firmament to the client
the lawyer represents, and ensuring that no prejudice is
caused to the accused he represents; a fundamental tenet of
criminal jurisprudence. The sublime and profound role
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carried out by the Advocates in civil society cannot be
disputed or discounted.
19. M.V. Dabholkar8 was a case in which the Bar Council of
a State challenged the setting aside of an action it took against
its own members, by the Bar Council of India, in an appeal.
While upholding the right of the Bar Council of the State to file
an appeal as an “aggrieved person” Justice V.R. Krishna Iyer
observed that the “Bar is not a private guild, like that of
'barbers, butchers and candlestick-makers' but, a public
institution committed to public justice and pro bono public
service” (sic). The role of an Advocate vis-à-vis; the client, the
Courts and the Society was also amplified in State of U.P. and
Ors. v. U.P. State Law Officers Association & Ors.9, in the
following extract: -
“15. The relationship between the lawyer and his
client is one of trust and confidence. The client
engages a lawyer for personal reasons and is at
liberty to leave his also, for the same reasons. He
is under no obligation to give reasons for
withdrawing his brief from his lawyer. The lawyer
in turn is not an agent of his client but his dignified,
responsible spokesman. He is not bound to tell the
9
(1994) 2 SCC 204
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court every fact or urge every proposition of law
which his client wants him to do, however
irrelevant it may be. He is essentially an advisor to
his client and is rightly called a counsel in some
jurisdictions. Once acquainted with the facts of the
case, it is the lawyer's discretion to choose the
facts and the points of law which he would
advance. Being a responsible officer of the court
and an important adjunct of the administration of
justice, the lawyer also owes a duty to the court as
well as to the opposite side. He was to be fair to
ensure that justice is done. He demeans himself if
he acts merely as a mouthpiece of his client. This
relationship between the lawyer and the private
client is equally valid between him and the public
bodies."
20. U.P. Sales Tax Service Association v. Taxation Bar
Association, Agra10 observed that “No doubt, an Advocate is
an officer of the Court and enjoys a special status in the society”
(sic). The said statement was made in deprecation of the
tendency of the Advocates to “… strike work and boycott the
Courts at the slightest provocation, overlooking the harm
caused to the judicial system in general and the litigant public
in particular and to themselves in the estimate of the general
public” (sic).
10 (1995) 5 SCC 716
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21. All the above cases dealt with professional misconduct
or a digression from the essential role. We cannot but express
that the observations made therein, were to provide some
material for introspection, to those who deviate from the
righteous path of administration of justice. The occasional
black sheep who tread the uneven, muddy lanes of deceit, in
purported protection of the interest of the client, which
though a minority, does, sadly exist in our system. We say
‘our system’ with emphasis since Judges cannot distance
themselves from the fraternity of lawyers, to which they once
belonged and to which they owe their present status. The
provision providing protection to the privileged
communications between the lawyer and the client is not to
protect those deviants but to ensure that the vast majority,
who are day in and day out, involved in the task of
administration of justice are not victimised or bullied into
making disclosures of their communications with their clients,
merely for reason of having represented a client of
questionable conduct or having some ill-repute or disrepute.
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22. We cannot but notice, in this context, Rule 11 of Section
20 of Part VI of the Bar Council of India Rules, 1975, titled
‘Standards of Professional Conduct and Etiquette’ (herein
after referred to as the Standards under the BCI Rules) framed
under the Advocates Act, 1961 which reads as under:
“An Advocate is bound to accept any brief in the
Courts or Tribunals or before which he proposes to
practice at a fee consistent with his standing at the Bar
and the nature of the case. Special circumstances may
justify his refusal to accept a particular brief.”
23. We are quite conscious of the onerous responsibility
cast on a lawyer who takes up an engagement to plead or
defend, on behalf of a client. There is an obligation cast on
him to provide his client the maximum protection as by law
established, in furtherance of the client’s cause. It is hence the
codified obligation, while maintaining absolute sincerity to
the cause of justice, ensuring strict and absolute
confidentiality with the communications made by his client
regarding the cause, for which he is engaged. Sections 132 to
134 is incorporated, not only in protection of the client but
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also to provide an immunity to the Advocate from making any
such disclosure.
Guidelines, if Necessary:
24. A great deal of emphasis was placed on Jacob Mathew5
to bring in guidelines. Especially, since lawyers and doctors
employ special skills in the discharge of their professional
duties, the nuances of which would be alien to a common man
or an I.O. That was a case in which two doctors, who
attempted to revive a patient fighting for breath, failed, also
by reason of non-availability of oxygen. Negligence was
alleged resulting in a charge under Section 304-A read with
Section 34 of the Indian Penal Code, 1860 (IPC). The doctors
were before the Supreme Court; their prayer to quash the
proceedings having failed before the jurisdictional
Magistrate and the High Court. The three Judge Bench was
considering the issue on a reference made from a two Judge
Bench decision in Suresh Gupta (Dr.) v. Govt. of NCT of
Delhi11 wherein the act of medical negligence alleged was
11 (2004) 6 SCC 422
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found to be not of a ‘reckless’ or ‘gross’ nature making the
doctor criminally liable; while a tortious liability could be
raised validly. The referring Bench was of the opinion that
there is no requirement for the negligence or recklessness to
be ‘gross’ which word will have to be read into Section 304-A
of the IPC and that, there could be no different standards
applied, insofar as negligence is concerned, to doctors and
the others clothed with responsibilities; professional, civic or
societal.
25. In Jacob Mathew5 the issue considered was of
professional negligence resulting in a criminal liability. It was
held that negligence is the breach of a duty caused by an act
or omission of a professional discharging a professional duty,
which would not be attempted or omitted by a reasonable
man in the same profession, exercising due diligence
expected of an ordinary practitioner. An act of negligence,
attracting criminal liability was found to be neglect to use
ordinary care or skill which constitute a breach of the
essential duty enjoined upon such professional, resulting in a
Page 26 of 78
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perceivable damage. Drawing a distinction insofar as
negligence is concerned; as a tort and as a crime, the
contention that jurisprudentially no distinction can be drawn
under the civil law and the criminal law was negatived. It was
held that the amount of damages incurred in tort, is
determinative of the extent of liability, while in criminal law
what is determinative of the liability is not the amount of
damages, but the degree or gravity of negligence. The
degree of negligence to fasten the liability under the criminal
law was held to be higher than that required in civil law. The
latter, being determined on a preponderance of probability,
while the former requires a higher standard, of proof beyond
reasonable doubt. The dictum in Dr. Suresh Gupta11 was
affirmed finding that the negligence to be established by the
prosecution to bring home a criminal liability must be
‘culpable’ or ‘gross’ and not a negligence merely based upon
an error of judgment.
26. In determining professional negligence, it was held that
every profession embraces a range of views. What is the
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standard of conduct and the competence of the one accused,
is to be judged by the lowest standard that would be
regarded as acceptable and not necessarily of a special skill
or one of highest expertise. While in the given case, the
doctors were found to have exercised due care and caution
absolving them from the liability of negligence, certain
guidelines were laid down especially noticing the increasing
tendency to subject doctors to criminal prosecution, wherein
the private complainant or the I.O would not be aware of the
nuances of a therapeutic or surgical intervention made by a
medical professional. It was hence stipulated that a private
complaint would not be entertained unless the complainant
has produced prima facie evidence of gross negligence in the
form of a credible opinion given by another medical
professional. Further, the I.O also was required to procure an
independent and competent medical opinion before a charge
is laid of rashness or negligence against a medical
practitioner leading to his arrest, which was not to be done in
a routine manner.
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27. The issue dealt with by this Court in Jacob Mathew5 was
a combination or intermix of tortious liability with criminal
liability, in which context such guidelines were issued. In the
present case we are not concerned with a professional
misconduct, and the controversy is only with respect to an
Advocate summoned to speak about a crime or his client,
when the communications pursuant to a legal engagement is
conferred with a privilege of non-disclosure under Section
132 of the BSA. In fact, the argument against such summons
issued is also that an Advocate if forced to make any
disclosure regarding the privileged communication with his
client, would expose him to a charge of professional
misconduct under Section 132, which is a protection afforded
to a client. We cannot find any parallel with Jacob Mathew5
or any aid by reason only of the Advocates and Doctors being
categorised as professionals with special skills. That does not,
even according to that decision, confer on the Doctors,
merely for reason of the status of a medical professional, any
blanket immunity from criminal prosecution, when rashness
or negligence is proved beyond reasonable doubt.
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28. Vishaka6 was in the nature of a class action focussing
attention on the societal abrasion of sexual harassment of
women in the workplace. This Court invoked Article 32,
considering the prevailing climate in which such instances
were not uncommon leading to violation of the rights under
Articles 14, 15 and 21 of the Constitution of India as also under
Article 19(1)(g). The increasing awareness and emphasis on
gender justice and the focussed efforts to guard against such
violence, especially on the realisation of the true concept of
gender equality, juxtaposed with the right to ‘life and liberty’
was the imminent concern. The trigger for the petition under
Article 32 was the gang rape of a social worker in a village
which brought to fore the travails and hazards faced by
working women and the depravity to which sexual
harassment can degenerate. It is to bring in safeguards by a
mechanism, in the absence of legislative measures, that this
Court issued guidelines in that situation, when a writ of
mandamus would not be effective without suitable guidelines
for prevention of such recurring phenomena, which were also
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in violation of the fundamental rights of women in workplaces.
The guidelines and norms were directed to be observed
scrupulously in all workplaces until suitable legislation was
enacted to occupy the field. There was hence a clear absence
of legislation which prompted the guidelines to be brought,
which were held to be binding and enforceable in law, for the
protection of fundamental rights of women in workplaces and
preservation of their dignity, till suitable legislation for that
purpose is brought about.
29. Considering the context in which this Court issued
guidelines in Jacob Mathew5 and Vishaka6, we are not
convinced that the instant case brings forth a comparable,
similar or identical fact situation for which no legal remedy is
available. As we noticed, at the risk of repetition, Jacob
Mathew5 was a case which dealt with negligence as a
criminal liability particularly on the aspect of medical
negligence, where the professional negligence attributed to
a person had to be found existing, prima facie, by another
professional having the same or higher competence. The
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present case is not concerned with any aspect of professional
negligence or professional misconduct.
30. Vishaka6 was in the nature of a class action, in the
evolving social milieu of gender equality when women came
out of their homes to the workplaces, wherein they faced
overt and subtle sexual harassment from superiors, peers and
even their subordinates; vintage hangover of a patriarchal
society. Insofar as the treatment of women in workplaces,
especially when there is an allegation of harassment confined
to work spaces; which though could be addressed as a
criminal liability, would not procure instant mitigation in a
workplace. This was sought to be addressed by this Court in
issuing the guidelines and norms, based on which legislation
has also been brought out now, which is not in exclusion of
the criminal liability fastened on the perpetrator of such
harassment.
31. We do not think that the positive judicial activism that
was prompted, treating the women in general and working
women in particular as a class, to avoid any sought of sexual
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harassment in the workplaces would, with the same gravity,
be applicable in the present case nor is there a judicial
vacuum requiring us to step in. Jacob Mathew5 also is not
applicable to the instant controversy which does not bring
forth any issue of professional negligence.
Advocate-Client Privilege:
32. In this context, we extract the relevant provisions under
the BSA which is in pari materia with the provisions of the
Indian Evidence Act which has held the field for more than a
century and a half:
132. Professional Communications
(1) No Advocate, shall at any time be permitted,
unless with his client’s express consent, to disclose
any communication made to him in the course and
for the purpose of his service as such Advocate, by
or on behalf of his client, or to 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 to disclose
any advice given by him to his client in the course
and for the purpose of such service:
Provided that nothing in this section shall
protect from disclosure of –
(a) any such communication made in
furtherance of any illegal purpose;
(b) any fact observed by any Advocate, in the
course of his service as such, showing that any
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crime or fraud has been committed since the
commencement of his service.
(2) It is immaterial whether the attention of such
Advocate referred to in the proviso to sub-section
(1), was or was not directed to such fact by or on
behalf of his client.
Explanation. – The obligation stated in this section
continues after the professional service has ceased.
Illustrations.
(a) A, a client, says to B, an Advocate – “I have
committed forgery, and I wish you to defend me”.
As the defence of a man known to be guilty is not a
criminal purpose, this communication is protected
from disclosure.
(b) A, a client, says to B, an Advocate – “I wish to
obtain possession of property by the use of a
forged deed on which I request you to sue”. This
communication, being made in furtherance of a
criminal purpose, is not protected from
disclosure.
(c) A, being charged with embezzlement, retains
B, an Advocate, to defend him. In the course of
the proceedings, B observes that an entry has
been made in A’s account book, charging A with
the sum said to have been embezzled, which
entry was not in the book at the commencement
of his professional service. This being a fact
observed by B in the course of his service,
showing that a fraud has been committed since
the commencement of the proceedings, it is not
protected from disclosure.
(3) The provisions of this section shall apply to
interpreters, and the clerks or employees of
Advocates.
133. Privilege not waived by volunteering
evidence. – If any party to a suit gives evidence
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therein at his own instance or otherwise, he shall not
be deemed to have consented thereby to such
disclosure as is mentioned in section 132; and, if any
party to a suit or proceeding calls any such
Advocate, as a witness, he shall be deemed to have
consented to such disclosure only if he questions
such Advocate, on matters which, but for such
question, he would not be at liberty to disclose.
134. Confidential communication with legal
advisers. – No one shall be compelled to disclose
to the Court any confidential communication which
has taken place between him and his legal adviser,
unless he offers himself as a witness, in which case
he may be compelled to disclose any such
communications as may appear to the Court
necessary to be known in order to explain any
evidence which he has given, but no others.
33. The illustrations though not exhaustive, is definitely
indicative of the instances when the transactions between the
client and his lawyer would not come within the privilege of
professional communication as has been protected under
Section 132. The proviso brings forth the exceptions which
are sufficiently explained in the illustrations. There cannot be
urged a lacuna or absence of legislation, in protection of the
lawyers’ obligation of non-disclosure, which is statutorily
prescribed. An Advocate cannot be coerced into revealing
any information with respect to the client he represents or the
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cause he is engaged to prosecute or defend, which would be
in violation of Section 132. The exceptions are clear and
operates only where there is (i) waiver/consent of the client.
(ii) furthering of an illegal purpose or (iii) observation of a
crime or fraud committed in the course of his engagement;
whether it be noticed at the instance of the client or otherwise.
The privilege though is conferred on the client, there is an
immunity enabled to the Advocate from making any
disclosure of such privileged communication, which he can
seek to invoke and exercise, even in the absence of his client,
which would be primarily in protection of the interests of his
client. The complicity to the crime even if admitted by the
accused to his lawyer, it does not fall within the genre of an
‘extra-judicial confession’.
The Common Law Jurisdictions:
34. Despite the request made not to refer to foreign
decisions; considering the fact that the privilege we are
concerned with is prevalent in all common law jurisdictions
across the world, we do not find any reason to avoid
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altogether, intelligent expositions on the privilege, merely
because it comes from shores, both distant and different. In
Greenough12
, from the United Kingdom, in the interests of
justice and to properly further the cause of administration of
justice, it was held:
“The foundation of this rule, is not difficult to
discover. It is not (as has sometimes been said) on
account of any particular importance which the
law attributes to the business of legal professors,
or any particular disposition to afford them
protection. (Though certainly it may not be very
easy to discover why a like privilege has been
refused to others, and especially to medical
advisers). But it is out of regard to the interests of
justice, which cannot be upholden, and to the
administration of justice, which cannot go on,
without the aid of men skilled in jurisprudence, in
the practice of the courts, and in those matters
affecting rights and obligations, which form the
subject of all judicial proceedings. If the privilege
did not exist at all, everyone would be thrown upon
his own legal resources. Deprived of all
professional assistance, a man would not venture
to consult any skilful person, or would only dare to
tell his counsellor half his case. If the privilege
were confined to communications connected with
suits begun, or intended, or expected, or
apprehended, no one could safely adopt such
precautions as might eventually render any
proceedings successful, or all proceedings
superfluous. From the terms in which I have stated
the proposition, it is manifest that several cases
12 39 E. R. 618 (1833)
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may arise, which, though apparently they are
exceptions, yet do in reality come within it. Thus
the witness, or the defendant treated as such, and
called so to discover, must have learned the matter
in question only as a solicitor or counsel, and in no
other way : if therefore, he were a party, and
especially to a fraud (and the case may be put of
his becoming informer after being engaged in a
conspiracy), that is, if he were acting for himself,
though he might also be employed for another, he
would not be protected from disclosing; for in such
a case his knowledge would not be acquired solely
by his being employed professionally”(sic,
pg.621).
[underlining by us for emphasis]
The above exposition succinctly puts in perspective the
privilege as embodied in Section 132 of the BSA and the
exceptions thereon. The privilege extends even to an
Advocate-Client communication which does not necessarily
arise from the engagement in a suit or prosecution; since
often, in the present scenario, on legal issues, even without a
pending suit or prosecution; individuals, corporates, firms
and associations of all hues, conferred with a legal status, take
legal opinion before acting or desisting from one, which
engagement may at times be solitary, sporadic or otherwise
on retainership.
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35. The privilege is said to be one of the most enduring
features in the legal profession of the United States. US v.
Upjohn & Co.13 [reversed on other grounds in 449 US 383
(1981)] observed that “finding the truth and achieving justice in
adversary system are best served by fully informed Advocates
loyal to their clients’ interests (sic-at 1226).” The Advocates
unless fully apprised of the facts cannot effectively put forth
the case of their client and assist the courts fully so as to
ensure that the adjudicatory system functions properly.
Despite the privilege having existed for over two centuries,
there are criticisms based on public interest. Jeremy
Bentham famously objected to the privilege as one
benefitting only the guilty, since the innocent has nothing to
hide and, therefore, nothing to fear from attorney disclosure.
Jackson Teague, in his article “Two Rights Collide:
Determining when attorney-client privilege should yield to a
defendant’s right to compulsory process or confrontation”
published in the American Criminal Law Review juxtaposes
13 600 F.2d 1223 (6th Cir. 1979)
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the privilege with the Fifth Amendment (rule against selfincrimination) and the Sixth Amendment (right to the
assistance of counsel) in the following words:
“In this context, however, the attorney-client
privilege plays a stronger role in safeguarding the
adversarial system. Recognizing that a layperson
often has trouble navigating the adversarial
system, the Framers ratified the Sixth Amendment
to ensure that criminal defendants have a right to
the assistance of counsel [See Jacob D. Briggs, GonzalezLopez and Its Bright-Line Rule: Result of Broad Judicial
Philosophy or Context-Specific Principles?, 2007 BYU L. REV.
531, 571 (2007) (discussing the American adversarial system and
need for similar resources as part of a right to counsel)]. The
effectiveness of that right hinges on the client’s
ability to communicate freely with his attorney [See
Monroe H. Freedman, Lawyer-Client Confidences and the
Constitution, 90 YALE L.J. 1486, 1492 (1981) (explaining that the
attorney-client privilege is necessary to ensure the adversarial
system functions properly, and is “rooted in the imperative need
for confidence and trust” between lawyer and client]). But a
client is unable to do so if he is placed in a worse
position by providing his attorney with information
than he would be by remaining silent [See Michael Jay
Hartman, Yes, Martha Stewart Can Even Teach Us About the
Constitution: Why Constitutional Considerations Warrant an
Extension of the Attorney-Client Privilege in High-Profile
Criminal Cases, 10 U. PA. J. CONST. L. 867, 876–77 (2008)]. If
called to the stand, the client can assert the
privilege against self-incrimination when asked
about incriminating facts. If the attorney-client
privilege is penetrable, however, and a client
communicates with his attorney, the client’s
statements could be discovered by simply
subpoenaing the attorney. The client would thus
have “walked into his attorney’s office
unquestionably shielded with the [Fifth]
Amendment’s protection, and walked out with
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something less.” [United States v. Judson, 322 F.2d 460, 466
(9th Cir. 1963)]. Before the right to counsel attaches,
discovery of these statements removes all teeth
from the privilege against self-incrimination. After
the right to counsel attaches, it creates a
constitutional dilemma [See United States v. White, 879
F.2d 1509, 1516 (7th Cir. 1989) (Will, J., concurring in part)
(“Absent [the attorney-client privilege], a party is forced to
choose between free communication with an attorney or
complete silence based on the Fifth Amendment, a choice which
one should not have to make and which the decided cases make
clear one does not have to make.”). For a detailed description of
this dilemma, see supra Part I].”
36. The Supreme Court of Canada has recognised ‘solicitorclient privilege’ having evolved from, being treated as a mere
evidentiary rule to being considered a rule of substance and
now, a principle of fundamental justice. It has been held in
Minister of National Revenue v. Duncan Thompson14
that ;
‘… the application of confidentiality that springs from the right
to solicitor-client privilege is necessary for the preservation of
a lawyer-client relationship that is based on trust, which in turn
is indispensable to the continued existence and effective
operation of Canda’s legal system. It ensures that clients are
represented effectively and that the legal information required
14 2016 SCC OnLine Can SC 30
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for that purpose can be communicated in a full and frank
manner [R. v. Gruenke, [1991] 3 S.C.R. 263]’ (sic).
The Peer-review:
37. The privilege that emanates from Section 132 has thus
engaged jurisdictions world over in its ramifications,
considered imperative in an adversarial judicial system.
Coming back to our own shores, D.P. Chadha v. Triyugi
Narain Mishra15
, was a case in which the professional
misconduct of a lawyer was punished by the Bar Council of
the State and in appeal the punishment was enhanced by the
Bar Council of India. This Court extracted from the definition
of “professional misconduct” given by Darling J. in Solicitor
Ex-parte the law Society, Re’, approved by the Privy Council
in George Frier Grahame v. Attorney General, Fiji16
, “… if it
is shown that a solicitor in the pursuit of his profession has done
something with regard to it which would be reasonably
regarded as disgraceful or dishonourable by his professional
15 (2001) 2 SCC 221
16 AIR 1936 P.C. 224
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brethren of good repute and competency then it is open to say
that he is guilty of professional misconduct.”
38. The question that arises is whether, “the professional
brethren of good repute and competency” have to be
associated in a summons issued to a lawyer by the Police
under the BNSS in pursuance of the investigation of a crime.
In resolving this vexed issue, we cannot but repeat that we
are not concerned with a professional misconduct when
considering the application of non-disclosure of confidential
professional communications made by a client. On the
contrary only the breach by an Advocate can lead to a charge
of professional misconduct, with which we are not perturbed
at the moment. We are herewith troubled with a coercion to
make disclosure, by the investigating agencies. The
contention also is that unless such attempts are thwarted,
there would be breach of the privilege, resulting in an
allegation of professional misconduct, which disclosure in
any event cannot be used against the client, in evidence.
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39. A professional misconduct of a medical professional is
dealt with by the Medical Council of India, which now has
been renamed as the National Medical Commission, a body
of medical professionals. In Jacob Mathew5
, it was held by
this Court that when such medical negligence involves
criminal liability also, then a professional body should
examine whether the negligence alleged, in addition to the
tortious liability, can result in a criminal liability, leading to
initiation of a criminal investigation or prosecution. Likewise,
a professional misconduct of an Advocate is examined by a
professional body, which is the Bar Council of India or the Bar
Council of the States, regulated by a statutory procedure and
providing hierarchy of authorities.
40. Not being disturbed with any aspect of professional
misconduct resulting in criminal liability, we have to tackle
the attempt of coercion on an Advocate to disclose the
privileged communications he had with his client, which
could jeopardise his client’s interests, especially, without the
consent of the client, which could in fact, lead to an allegation
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of professional misconduct. As we noticed from Section 132,
the obligation of non-disclosure would not fetter the Advocate
from disclosing any communication made in furtherance of
any illegal purpose or any fact coming to the notice of the
Advocate, in the course of his engagement, revealing a crime
or fraud committed by his client after the commencement of
the engagement. The exceptions are also very clear insofar
as what would fall under the immunity of a privileged
communication and what would fall outside it; delineated in
the illustrations.
41. An Investigating Officer or an investigating agency is
not oblivious of the law. The dichotomy insofar as a medical
negligence resulting in criminal liability does not, as such
arise in the case of an investigation carried on under the
BNSS, which is carried on by a person informed in law and the
provisions of the BSA. Ignorance or absence of domain
knowledge does not squarely apply in a case where the I.O
summons a lawyer, the powers of which are clearly fettered
by the provisions of Section 132. Though distinct, it would also
be an extension of the client’s constitutional right against self-
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incrimination as found in Article 20(3) of the Constitution of
India. When a person cannot incriminate himself, he cannot
be prejudiced or incriminated by the statement of his
counsel, only on the basis of the professional communications
he had with his counsel, in confidence. This is why it has been
said that a person cannot walk out of his counsel’s office with
a defaced privilege, which he had intact, when he walked into
it. That too only by reason of the disclosures he made in his
own interests, his defence and to further his chances in the
adjudicatory process.
The Right to Legal Representation:
42. Moreover, when we look at the issue of a lawyer being
summoned as a witness by the Investigating Officer or the
Court, to speak about the transactions with his client, we have
to also keep in mind the right of a person to legal
representation, which is enshrined in the Constitution itself.
The question arose as to whether a party in a suit could
summon the counsel of the opposite party as a witness, before
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the Kerala High Court in N. Yovus v. Immanuel Jose17. The
suit arising from a failed matrimonial proposal had reached
the final stage when a petition was filed by one party seeking
permission to cite the Advocate of the respondent as a
witness. The Division Bench decision considering the issue,
referred specifically to Rule 13 of Chapter 2 of Part VI of the
Bar Council of India Rules, which requires an Advocate to
decline a brief or not to appear in a case, in which he has
reason to believe that he is a witness and if engaged it would
be apparent that he is a witness on a material question of fact;
who should not continue to appear as an Advocate, if he can
retire without jeopardizing his clients interest. It was held that
only if the Court after enquiry finds that examination of the
Advocate as a witness is indispensable and the same would
not jeopardise the interests of the party he represents, there
could be summons issued which would result in
disengagement of the Advocate. In that particular case, it was
found that the summons was to prove a letter sent by the
17 1995 SCC Online Kerala 48
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plaintiffs to the Advocate after the commencement of the
proceedings and a compromise suggested by the Advocate.
The summons was declined on the reasoning that even if
something could be elicited from the exceptions contained in
Section 126, it would be of little use in the case and the
hardship caused to the client by depriving him of
professional service of the counsel engaged by him would be
far more.
43. Article 14 speaks of equality before law and equal
protection of the laws and Article 21 guarantees protection of
life and liberty; other than a fetter to such right being
occasioned in accordance with a procedure established by
law. M.H. Hoskot v. State of Maharashtra18 held that
procedure established by law under Article 21 read with
Article 19(1)(d) includes right of appeal and right to counsel
when deprivation of life and liberty are in peril. The
appellants right to be represented by a counsel, if necessary,
by providing legal aid was reiterated in Rakesh v. State of
18 (1978) 3 SCC 544
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Madhya Pradesh19 & Sheikh Mukhtar v. State of Andhra
Pradesh20. The rights under Article 14 and 21 encompasses
within it the right to a legal practitioner. In addition, Article
22(1) makes mandatory the provision of the right to consult
and to be defended by the legal practitioner of a man’s choice
when he is arrested. Article 39-A of the Directive Principles
puts obligations on the State to secure justice and equal
opportunity by providing free legal aid especially in the case
of citizens denied such representation by reason of economic
or other disabilities; as declared in Hussainara Khatoon v.
State of Bihar21. The said right has been stated to be one
which enables provision of effective and adequate legal
representation, which would be jeopardized while
summoning a lawyer to be witness in a case.
The privilege vis-à-vis the procedure under BNSS:
44. Be that as it may, we are not satisfied that this Court
could frame a guideline insofar as the procedure to be
19 (2011) 12 SCC 513
20 (2020) 19 SCC 178
21 (1980) 1 SCC 98 & 108
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adopted in summoning a lawyer, which would be in addition
to and for all practical purposes may, in effect, be in
derogation of the provisions of the BNSS. The power of the
police officer to investigate a cognizable offence, as provided
under Section 175, even without the order of a Magistrate,
cannot be regulated by any guideline issued by us,
especially when sufficient guideline is available, under
Sections 132 to 134 of the BSA. A police officer issuing
summons to an Advocate, under Section 179, would be
cautioned by the provisions of Section 132 in not expecting
any disclosure of a privileged communication. We are not in
a position of absolutely no guideline being available; which
prompted this Court under Article 142 to frame guidelines in
Vishaka6 or in a situation of absence of expertise in corelating
professional negligence with criminal liability, as existed in
Jacob Mathew5. We are faced with a state of affairs where
there is an absolute overreach in violation of the statutory
mandate, which occurs by reason of deliberate design or
abject ignorance, to correct which, there are Courts
established, especially the Constitutional Courts.
Page 50 of 78
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45. We are also not persuaded to constitute a committee of
legal professionals or enabling the summons to be issued
through a Magistrate, which would be in derogation of the
provisions of the BNSS. We agree that such a measure would
be counter-productive insofar as the I.Os attempting to
summon the Advocate appearing in a case, at the drop of the
hat; if we may use that phrase, by resorting to the procedure
of a duly constituted committee of legal experts or the
Magistrate, in effect could frustrate the cause of justice and
stifle the due administration of rule of law. This would also put
in jeopardy the right of a client/accused who is actually
conferred with the protection against disclosure. A
committee of legal experts or even a Magistrate taking a
decision, without the junction of the client/accused, who
would eventually be prejudiced if a decision is taken in favour
of disclosure, would be wholly inappropriate and would run
counter to the basic tenets of full and effective legal
representation.
The Epilogue:
Page 51 of 78
Suo Motu Writ Petition (Crl.) No. 2 of 2025 & Ors.
46. Before we sum up, we have to notice the summons
issued, challenged in SLP (Crl.) Diary No.33845 of 2025 which
has been extracted in the reference order. It mentions only
the crime number, the names of the accused and the
provisions under which it has been registered and abruptly
summons the Advocate appearing for the accused to know
the true details of the facts and circumstances of the case. The
facts and circumstances of a crime committed, or an FIR
registered, is not to be elicited from the Advocate who
represents the accused, which again is a reflection of the
abject failure of the investigating agency. It is for the
investigator to obtain independent evidence of the
culpability of the accused. The position of trust the Advocate
occupies vis-à-vis his client cannot be put to test by an attempt
to breach the professional confidence, conferred with a
solemn privilege under Section 132; which has reflections of
the constitutional protection against self-incrimination.
Whether the summons issued falls under any of the
exceptions as provided under Section 132 has to be explicitly
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Suo Motu Writ Petition (Crl.) No. 2 of 2025 & Ors.
stated if a summons is issued to the Advocate on any of the
exceptions; which is not an empty formality and hence, when
supported by reasons, amenable to judicial review.
47. Despite our conviction to the contrary, on the framing of
guidelines and constituting a committee of professionals, we
cannot but express our anguish in the investigating agencies
summoning Advocates appearing in a case, in furtherance of
the investigation of the said case. Though, the Magistrate is
conferred with the power to monitor the investigation as has
been held in Sakiri Vasu v. State of Uttar Pradesh22
reaffirmed in Vinubhai Haribhai Malaviya v. State of
Gujarat23, it does not extend to interfering with the power
conferred on a police officer to summon a witness under
Section 179 of BNSS. However, the provisions of Section 528
of the BNSS provides sufficient safeguards to the Advocates
against whom a summons is issued under the BNSS.
22 (2008) 2 SCC 409
23 (2019) SCC 1
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48. We find the summons issued in the instant case to be
illegal and against the provisions of Section 132 insofar as the
Advocate has been summoned to know the true details of the
facts and circumstances of the case in which he appears for
the accused. We are surprised that the High Court, being a
Constitutional Court, exercising the jurisdiction under
Section 528 of the BNSS refused to interfere with the same. We
find the reasons stated; of the Advocate having not responded
to the summons and the investigation being stalled, to dismiss
the petition, to be flawed & erroneous. It is also in abdication
of the inherent powers conferred on the High Court, which the
blatant breach of the rule against non-disclosure projects.
The breach is not only of the evidentiary rule, which many
jurisdictions accept as fundamental to the adversary
adjudicatory scheme, but, in the Indian context, project
infringement of fundamental rights; guaranteed against selfincrimination and effective representation of Counsel.
49. On a conspectus of the issues raised, as deliberated
upon, we answer the first of the two questions referred to us
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by a Co-ordinate Bench of this Court, with an emphatic ‘NO’.
The investigating agency/prosecuting agency/the police
cannot directly summon a lawyer appearing in a case to elicit
the details of the case, unless there is something, the I.O has
knowledge of, which falls under the exceptions, in which case
it has to be specifically mentioned in the summons, which the
lawyer summoned can challenge under Section 528 of the
BNSS.
50. We also make it clear that any such summons issued as
against a lawyer by an I.O has to be with the approval and
satisfaction of the hierarchical Superior, not below the rank of
a Superintendent of Police which satisfaction has to be
recorded in writing and should mention the facts leading to
the exception under Section 132, for which the summons is
issued.
51. Answering question No.2, we are of the opinion that
sufficient judicial oversight is prescribed under Section 528
of the BNSS. Oliver Wendell Holmes, J. in Panhandle Oil
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Company v. State of Mississippi24 referred to a quote of the
Chief Justice John Marshall that ..“the power to tax is the
power to destroy25”. Finding that the said proposition no
more holds good, when it is recognised that distinction of law
are distinction of degree, it was observed so, ..“if the States
had any power, it would assume that they have all power, and
the necessary alternate was to deny it all together. But this Court
which so often has defeated the attempt to tax in certain ways,
can defeat an attempt to discriminate or otherwise go far
without wholly abolishing the power to tax. The power to tax
is not the power to destroy while this Court sits”.
52. Drawing a corollary, the power to summon, conferred
on an Investigating Officer under Section 179 read with
Section 175 of the BNSS; when such summons is directed
against an Advocate in a case where he is appearing for a
party, is not an absolute or a blanket power to be exercised,
without looking at the provisions of Section 132 of the BSA. We
cannot deny the power altogether or place fetters on it by
24 (1928) 277 US 218
25 McCulloch v. Maryland, 17 U.S. 316 (1819)
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framing guidelines, especially when there are limits and
exceptions to the privilege conferred on confidential
professional communications between a Client and an
Advocate. If there is an overreach, the Constitutional Courts
could always be approached as has been done in the present
case. Borrowing a phrase from the above extract, we cannot
but say that the power to summon under Section 175 & 179 is
not the power to interfere with the privileged
communications between a lawyer and client, as long as the
Constitutional Courts sit, in this Country. We know the
inaction of a High Court has resulted in the Suo-Motu
initiation, which we are sure is not the norm.
53. We have already noticed from Greenough12 that the
confidentiality of the professional communications is not
confined to transactions with an Advocate engaged in a case
but also extends to legal advice taken, at a solitary instance,
sporadically, on a periodic basis or even under a regular
retainership. We fully agree with the above proposition, one
of the earliest in time referred by us, which we respectfully
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accept as the correct exposition of the privilege, continued
incessantly under the 1872 Act, probably inspired by and
infused with the principle expounded in 1833, in
Greenough12.
Production of Documents & Digital Devices:
54. One ancillary issue which has been agitated is the
question of seizure of documents and in the present scenario
of advancing technology; the seizure of digital equipment.
Insofar as documents are concerned, the position may be
slightly different, especially when the Court or the I.O has the
power to summon it and direct production of the same from
the client, if it were in his possession. The Court and the I.O
are empowered to direct production of a document by
Section 94 of Chapter VII of the BNSS. Section 94 empowers
both the Court or an officer in-charge of a police station to
issue summons or a written order in the physical form or in
electronic form, requiring the production of the document or
thing which is believed to be in the possession of a party to
produce it at the time or place stated in the summons or order.
Page 58 of 78
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However, we have to specifically notice sub-section (3) of
Section 94 which protects documents under Sections 129 and
130 of the BSA and the Bankers’ Books Evidence Act, 189; but
does not afford such protection to Section 132.
55. Gangaram v. Habib-Ullah26 is one of the earliest cases
where this issue was raised before the High Court of
Allahabad. Pursuant to a complaint, at the stage of evidence,
the accused sought production of an earlier complaint by the
Mukhtar, who was representing the complainant, who
claimed the privilege of non-disclosure of confidential
professional communications. It was held that the prayer
made was not for disclosure of any communication made in
the course of or for the purpose of his engagement as a legal
adviser. The provision; Section 126, it was held, does not refer
to production of documents in the custody of a legal adviser
but prohibits any disclosure about the contents of the
document, the legal adviser has become acquainted with in
the course and for the purpose of his engagement. Nor was
26 1935 SCC OnLine All: 310
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the Mukhtar called upon to reveal any legal advice he had
given the client. Finding also that the prayer for production
did not fall under any of the exceptions of Section 126 it was
all the same held that the protection available under Section
126 does not apply to production of documents.
56. The production of documents was dealt with under
Section 166 of the Evidence Act under which a person
summoned to produce a document shall, if it is in his
possession or power, bring it to court notwithstanding any
objection; which objection to its production and the
admissibility, being decided by the court. The provision also
enables the court to inspect the document unless it refers to
matters of State, and take other evidence to enable
determination of its admissibility. It was categorically held
that in that case the Mukhtar was not at all justified in refusing
to produce the document as it was a criminal case in which
the procedure was governed by Section 94 of the Cr.P.C.,
1973. Section 91 of the Cr.P.C, as it existed then, empowered
the court to issue summons to produce a document if it was
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Suo Motu Writ Petition (Crl.) No. 2 of 2025 & Ors.
found necessary and sub-section (3) exempted only
documents which were protected under Sections 123 and 124
of the Evidence Act, 1872. This is in pari materia with Section
94 of the BNSS. The principle applies in civil cases too and
specifically Order XVI Rule 7 of the Civil Procedure Code,
1908, was noticed. When the client who has possession of a
document cannot refuse to produce a document, subject only
to his objection being decided by the court and cannot claim
the privilege under Section 126, there is no question of a
privilege being claimed by a lawyer who has been given
possession of that document by the client. The Madras High
Court followed Gangaram26 in The Public Prosecutor,
Madras v. M.S. Menoki of Calicut27.
57. Later, Chandubhai Jethabhai Desai v. The State and
Another28, considered a similar case and followed the same
principle looking at Section 94 of the Cr. P.C. and Section 126
of the Evidence Act. The decision in Gangaram26 was also
approved in ‘Matter of Great Public Importance Touching
27 AIR 1939 Mad 914
28 AIR 1962 Guj 290
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upon the Independence of Judiciary’
29 by a three-Judge
Bench of this Court.
58. Any summons issued by an officer in-charge of a Police
Station to a lawyer to produce documents, relatable to his
client, can only be for production before Court of the said
document which shall be perused, for the purpose of
deciding on the objections raised against the direction to
produce and determine its admissibility, after hearing the
witness who produces it and any objection raised by the
client under Section 132 of the BSA, which decision shall be
by the Court and not by the officer. In examining any digital
equipment so produced, the Court shall ensure the presence
of the lawyer and his client as also any person, the lawyer or
client desires to accompany them, who is conversant in
digital technology. We specifically bring in this requirement
with regard to production of digital device in Court since the
digital device so produced by a lawyer may contain not only
29 (2019) 19 SCC 405
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the material required by the Court or the officer, but also
other material in relation to his other clients.
The In-house Counsel:
59. Now we come to yet another ancillary issue as to
whether an In-house counsel in the employment of a
corporate entity would be covered under the privilege
offered by Section 132 of BSA. A society called the General
Counsels Association of India; members of which are the
General Counsels and Legal Advisors of prominent
companies, have filed an intervention application asserting
their rights under Section 132 and 134. It is also claimed,
based on Rule 49 of Chapter 2 Part VI of the Bar Council of
India Rules, ‘Standards of Professional Conduct and Etiquette’
mandating the restriction in practising for persons in the rolls
of the Bar Council who are in a regular employment; that, but
for pleading and appearing in Courts they carry on the very
same duties as legal advisors. At first blush though the
contention seems attractive we cannot but observe that the
fact of their regular employment with full salaries takes them
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away from the definition of an Advocate as defined under the
Advocates Act 1961, which has been incorporated in Section
132 of the BSA.
60. Section 126 as was available in the Indian Evidence Act
referred to “barrister, attorney, pleader or vakil” as
professionals who would be entitled to claim non-disclosure
of professional communications, which is a privilege
conferred on their client. Section 126 took into account the
different categories of professionals who practice law and
appear in Courts when the Indian Evidence Act was enacted
in the year 1872. With the coming into force of the Advocates
Act, 1961, specifically enacted to amend and consolidate the
law relating to legal practitioners, an Advocate was defined
under Section 2(a) as a person who is entered in any roll as
provided under the provisions of that Act. Section 29 provides
that there shall be only one class of persons entitled to
practise law as a profession, i.e.: Advocates. Section 30 of the
Act provides an Advocate whose name is entered in the State
Roll, the right to practice throughout the territories of India in
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all Courts, before any Tribunal or any person legally
authorised to take evidence or an authority. Section 33 is a
restriction on any other person to practice law in Courts or
before authorities unless he is enrolled as an Advocate under
the Act.
61. The advent of the Advocates Act, 1961, the decisions on
this aspect and the amendments brought into Rule 49 of the
Bar Council of India Rules prescribing the ‘Standards of
Professional Conduct and Etiquette’ for Advocates was
elaborately considered by a Constitution Bench in Rejanish
K.V. v. K. Deepa30:
“…136. Rule 49 of the Bar Council of India Rules as
originally framed, reads as follows:
“An advocate shall not be a full-time salaried
employee of any person, Government, firm,
corporation or concern, so long as he continues to
practise and shall, on taking up any such
employment, intimate the fact to the Bar Council
on whose roll his name appears, and shall
thereupon cease to practise as an advocate so long
as he continues in such employment.
Nothing in this rule shall apply to a law officer
of the Central Government or of a State or of any
Public Corporation or body constituted by statute
who is entitled to be enrolled under the rules of his
30 2025 SCC OnLine SC 2196
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State Bar Council made under Section 28(2)(d)
read with Section 24(1)(e) of the Act despite his
being a full-time salaried employee.
Law Officer for the purpose of this Rule means
a person who is so designated by the terms of his
appointment and who, by the said terms, is
required to act and/or plead in Courts on behalf of
his employer.”
137. As already referred to hereinabove,
in Sushma Suri[(1999) 1 SCC 330] , the question arose as
to whether the word “Advocate” in Article 233(2)
includes a law officer of the Central or State
Government, public corporation or of a body
corporate, who is enrolled as an advocate under
exception to Rule 49, who is practicing before
Courts or Tribunal for his employer. A three-Judge
Bench held positively, permitting a Public
Prosecutor and Government Counsel who is on the
rolls of the Bar Council, as entitled to practice
under the Act, who would also answer the
description of an Advocate under Article 233(2) of
the Act.
138. The very same question arose in a different
context in Satish Kumar Sharma v. Bar Council of
H.P.[(2001) 2 SCC 365]. The appellant therein was
appointed as Assistant (Legal) by the Himachal
Pradesh State Electricity Board, who later enrolled
with the State Bar Council at the expense of the
Board. After his appointment, the appellant therein
continued in the Board as a regular employee, was
given promotions with change in designations and
was also appearing for the Board in the Courts.
The certificate of enrolment issued in the year 1984
was withdrawn by the Bar Council of the State in
the year 1996 after due notice and opportunity of
hearing. Looking at the nature of the duties of the
appellant who was a full-time salaried employee,
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it was found that his work was not mainly or
exclusively to act or plead in Courts and he had to
attend to many more duties, which were quite
substantial and predominant. The appellant
therein was also found to be amenable to
disciplinary jurisdiction of his employer and mere
occasional appearances in some Courts on behalf
of the employer could not bring the employer
within the meaning of “Law Officer” under
paragraph 3 of Rule 49 was the finding. The
decision in Sushma Suri (supra) was specifically
noticed and distinguished on the ground that in
that case the court was concerned with the
definition of the word “Advocate” as appearing in
Article 233(2), which was held to include a law
officer of the Central or State Government who is
enrolled as an advocate falling under exception to
Rule 49. It was found so in paragraph 20 of Satish
Kumar Sharma (supra):
“20. As stated in the above para the test
indicated is whether a person is engaged to act or
plead in a court of law as an Advocate and not
whether such person is engaged on terms of salary
or payment by remuneration. The essence is as to
what such Law Officer engaged by the
Government does.”
139. Satish Kumar Sharma, however, was found to
be not coming within the exception under Rule 49
especially when there was no rule framed by the
State Bar Council entitling law officers to enrol as
an Advocate even if they were full time employees.
The contention that after such a long time his
certificate of enrolment could not have been
cancelled was negated on the finding that even at
the threshold, he was not entitled to be enrolled
under Rule 49. On the same premise an alternative
contention that he may be permitted to resign and
retain his enrolment from the date on which the
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certificate was issued was also negated. Finding
no reason to maintain his seniority on the rolls of
the State Bar Council, on the basis of an enrolment
certificate which at its very issuance was barred,
the claim was rejected.
140. We have to specifically notice that both these
decisions were taken based on Rule 49 as it existed
then. The exceptions provided by paragraphs 2
and 3 have now been removed and have been
substituted with the following:
“That as Supreme Court has struck down the
appearance by Law Officers in Court even on
behalf of their employers the Judgment will
operate in the case of all Law Officers. Even if they
were allowed to appear on behalf of their
employers all such Law Officers who are till now
appearing on behalf of their employers shall not
be allowed to appear as advocates. The State Bar
Council should also ensure that those Law Officers
who have been allowed to practice on behalf of
their employers will cease to practice. It is made
clear that those Law Officers who after joining
services obtained enrolment by reason of the
enabling provision cannot practice even on behalf
of their employers.
That the Bar Council of India is of the view that
if the said Officer is a whole time employee
drawing regular salary, he will not be entitled to
be enrolled as an advocate. If the terms of
employment show that he is not in full time
employment he can be enrolled.”
141. As of now, an employee cannot get enrolled
in the rolls of the State Bar Council without giving
up his employment. A law graduate who is
enrolled as an Advocate on taking up regular
employment as full time salaried employee is
obliged to intimate the fact to the Bar Council in
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which he is enrolled and would then seize to
practice as an Advocate so long as he continues
such employment. Failure to make such intimation
can result in his name being struck off from the
Rolls. Reading Sections 29, 30 and 33 of
the Advocates Act, 1961 together with Rule 49 of
the Bar Council of India Rules, an employee, even
if he is in the Rolls of the State Bar Council, as long
as he remains a fully salaried employee, on
intimation of the regular employment would be
prohibited from carrying on practice of law as an
Advocate.”
62. Whether, in his employment, an In-house Counsel
advises his employer on legal affairs would not bring an Inhouse counsel, a fully salaried employee, within the definition
of an Advocate which would also not enable him to claim the
privilege with respect to communications with his employer
as available under Section 126, but could definitely take up
other pleas, which we are not required to look into at this
stage.
63. In this context, we also have to notice the decision of this
Court in Bar Council of India v. A.K. Balaji31, which
considered the issue as to whether foreign law
31 (2018) 5 SCC 379
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firms/companies or foreign lawyers were entitled to practice
law in India. This court considered the decision of the Madras
High Court in A.K. Balaji v. Union of India32 and that of the
High Court of Bombay in Lawyers Collective v. Bar Council
of India33. The High Court of Bombay held that foreign law
firms are not entitled to carry on litigious and non-litigious
practice in India, since both are covered under the ambit of
Advocates Act, 1961. The Madras High Court while agreeing
with the view, distinguished it as being applicable only to
foreign law firms attempting to establish liaison offices in
India to render legal assistance in any litigious and nonlitigious matters. However, it was held that a foreign lawyer
or a firm who is visiting India for a temporary period on a “flyin and fly-out” basis will be entitled to carry on all ancillary
legal work except practice in a Court of Law.
64. This Court upheld the view of the High Court of Bombay
that practice of law includes litigation as well as work in nonlitigious matters including: giving of opinions, drafting,
32 2012 SCC OnLine Mad 723
33 2009 SCC OnLine Bom 2028
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participation in conferences and involving in legal
discussions. That the regulatory mechanism for conduct of
Advocates applies to non-litigious work was declared
unequivocally. Insofar as visit of a foreign lawyer on a ‘fly-in
and fly-out’ basis, it was held that though a casual visit for
giving advice may not be covered by the definition of
practice, determination of whether it was a casual visit or not
would depend upon the facts in a given situation; to regulate
which the Bar Council of India or the Union of India would be
at liberty to make appropriate rules.
65. We have to also notice the judgment of the European
Court of Justice (Grand Chamber) in Akzo Noble Limited v.
European Commission31. That was a case in which the
officials of the European Commission tasked with the
investigation at the applicant’s premises took copies of
considerable number of documents, upon which the
representatives of the applicant raised the issue of protection
of confidentiality of the communication between themselves
European Court Reports 2010 I-08301
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and their lawyers. A joint examination of the documents was
made, two of which were e-mails exchanged between the
General Manager of the applicant and the Co-ordinator for
Competition Law; the latter though enrolled as an Advocate
of the Netherland’s Bar, at the material time was a member of
the applicant’s legal department, employed on a permanent
basis. The role of the Co-ordinator was akin to an In-house
counsel and the Court found against the privilege claimed on
the following points, which we extract hereunder with
approval:
“The benefit of legal professional privilege
with respect to communications between lawyers
and their clients is subject to two cumulative
conditions. First, the exchange with the lawyers
must be connected to the client’s rights of defence
and, second, the exchange must emanate from
independent lawyers, that is to say, lawyers who
are not bound to the client by a relationship of
employment.
It follows that the requirement of
independence means that there should exist no
employment relationship between the lawyer and
his client, so that legal professional privilege does
not cover exchanges within a company or group
with In-house lawyers.
The concept of the independence of lawyers
is determined not only positively, that is by
reference to professional ethical obligations, but
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also negatively, by the absence of an employment
relationship. An In-house lawyer, despite his
enrolment with a Bar or Law Society and the
professional ethical obligations to which he is, as a
result, subject, does not enjoy the same degree of
independence of his employer as a lawyer
working in an external law firm does in relation to
his client. Consequently, an In-house lawyer is less
able to deal effectively with any conflicts between
his professional obligations and the aims of his
client.
An In-house lawyer cannot, whatever
guarantees he has in the exercise of his profession,
be treated in the same way as an external lawyer,
because he occupies the position of an employee
which, by its very nature, does not allow him to
ignore the commercial strategies pursued by his
employer, and thereby affects his ability to
exercise professional independence.
Furthermore, under the terms of his contract
of employment, an In-house lawyer may be
required to carry out other tasks which may have
an effect on the commercial policy of the
undertaking and which cannot but reinforce the
close ties between the lawyer and his employer.
It follows that, because both of an In-house
lawyer’s economic dependence and of the close
ties with his employer, he does not enjoy a level of
professional independence comparable to that of
an external lawyer.
In-house lawyers being in a fundamentally
different position from that of external lawyers, so
that their respective circumstances are not
comparable, no breach of the principle of equal
treatment results from the different treatment of
those professionals with respect to legal
professional privilege.
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Even assuming that the consultation of Inhouse lawyers employed by the undertaking or
group were to be covered by the right to obtain
legal advice and representation, that would not
exclude the application, where In-house lawyers
are involved, of certain restrictions and rules
relating to the exercise of the profession without
that being regarded as adversely affecting the
rights of the defence.
Finally, the fact that, in the course of an
investigation by the Commission, legal
professional privilege is limited to exchanges with
external lawyers in no way undermines the
principle of legal certainty.”
66. We are in respectful agreement with the above
propositions, which squarely apply insofar as In-house
counsel, who are taken away from the definition of an
Advocate, practising law independently whether it be in
litigation or non-litigious matters, as distinguished from a fulltime salaried employment. An In-house counsel though is
engaged in the job of advising his employer on questions of
law would even then be influenced by the commercial and
business strategies pursued by his employer and would
always be beholden to his employer and obliged to protect
their interest.
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The Way Forward;
67. On a broad conspectus of the Client-Advocate privilege
as codified in Section 132 to 134 of the BSA; though we are not
persuaded to lay down any guidelines, which we believe are
sufficiently available on an interpretation of the provisions
itself, which also restrains us from constituting a committee of
legal professionals, we issue the following directions; to
ensure that the privilege is not impinged upon by valiant
investigators or overzealous parties to a litigation, purely on
the basis of the interpretation of the evidentiary rules
codified :
1. Section 132 is a privilege conferred on the
client, obliging an Advocate not to disclose any
professional communications, made in
confidence, which privilege, in the absence of
the client can be invoked by the Advocate on
behalf of the client.
1.1 The Investigating Officers in a criminal
case or a Station House Officer conducting a
preliminary inquiry in a cognizable offence
shall not issue a summons to an Advocate who
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Suo Motu Writ Petition (Crl.) No. 2 of 2025 & Ors.
represents the accused to know the details of
the case, unless it is covered under any of the
exceptions under Section 132.
1.2 When a summons is so issued to an
Advocate, under any of the exceptions, it shall
explicitly specify the facts on which the
exception is sought to be relied upon, which
shall also be with the consent of the superior
Officer not below the rank of a Superintendent
of Police who shall record his satisfaction as to
the exception in writing, before the summons is
issued.
1.3 A summons so issued shall be subject to
judicial review at the instance of the Advocate
or the client under Section 528 of the BNSS.
1.4 The Advocate on whom there is an
obligation of non-disclosure as per Section 132
of the BSA shall be one who is engaged in a
litigation or in a non-litigious or a pre-litigation
matter.
2. Production of documents in the possession
of the Advocate or the client will not be covered
under the privilege conferred by Section 132,
either in a civil case or a criminal case.
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Suo Motu Writ Petition (Crl.) No. 2 of 2025 & Ors.
2.1 In a criminal case, the production of a
document directed by a Court or an Officer
shall be complied with by production before the
Court under Section 94 of the BNSS; being
regulated also by Section 165 of the BSA.
2.2 In a civil case, the production of a
document shall be regulated by Section 165 of
BSA and Order XVI Rule 7 of the Civil Procedure
Code.
2.3 On production of such document, it shall
be upon the Court to decide on any objection
filed with respect to the order to produce, and
the admissibility of the document, after
hearing the Advocate and the party whom the
Advocate represents.
3. The production of a digital device under
Section 94 of the BNSS if directed by an
Investigating Officer, the direction shall only
be to produce it before the Jurisdictional Court.
3.1 On production of the digital device by the
Advocate before the Court; the Court shall issue
notice to the party with respect to whom the
details are sought to be discovered from the
digital device and hear the party and the
Advocate on any objection regarding the
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Suo Motu Writ Petition (Crl.) No. 2 of 2025 & Ors.
production of the digital device, discovery from
it and the admissibility of that discovered.
3.2 If the objections are overruled by the
Court, then the digital device shall be opened
only in the presence of the party and the
Advocate, who will be enabled due assistance
of a person with expertise in digital technology,
of their choice.
3.3 While examining the digital device, care
shall be taken by the Court not to impair the
confidentiality with respect to the other clients
of the Advocate and the discovery shall be
confined to that sought by the Investigating
Officer, if it is found to be permissible and
admissible.
4. In-house counsel will not be entitled to the
privilege under Section 132 since they are not
Advocates practicing in Courts as spoken of in
the BSA.
4.1 The In-house counsel, however, would be
entitled to the protection under Section 134
insofar as any communication made to the
legal advisor of his employer, which however,
cannot be claimed for the communications
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Suo Motu Writ Petition (Crl.) No. 2 of 2025 & Ors.
between the employer and the In-house
counsel.
68. With the above directions, we dispose of the Suo Motu
case, setting aside the summons issued in the SLP (Crl.) No.
9334 of 2025 and cautioning gallant Investigating Officers
from transgressing impulsively, the privilege under Section
132, which could result in violating the statutory provision and
more importantly result in the infringement of the
fundamental rights guaranteed to the person whom the
Advocate represents, by the Constitution of India.
..….…………………….…..CJI.
(B. R. Gavai)
.….….…………………….….. J.
(K. Vinod Chandran)
.….….…………………….….. J.
(N.V. Anjaria)
New Delhi;
October 31, 2025.