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Will frame norms to stop lawyers being summoned by agencies: SC
The Supreme Court will create guidelines to prevent police from summoning lawyers for legal advice, citing concerns over justice delivery and bar independence.
The Supreme Court on Monday said it will formulate comprehensive guidelines to prevent investigating agencies and police from directly summoning lawyers who have rendered legal advice to or represented clients during the investigation stage, asserting that such actions may have a “chilling effect” on justice delivery and independence of the bar.
A bench comprising Chief Justice of India Bhushan R Gavai and Justice K Vinod Chandran, said it would call for suggestions and inputs from the Centre, its top law officers, and leaders of the bar to evolve institutional safeguards.
“Even if an advice is wrong, how can a lawyer be summoned for giving legal advice? We were shocked” the bench said during Monday’s hearing. “We will have to lay down guidelines for all matters,” added the court, noting that this practice cannot be allowed to continue unchecked.
Solicitor General Tushar Mehta accepted the principle that lawyers cannot be summoned merely for offering legal counsel but flagged what he described as a “concerted effort” to “denigrate the institution.” “There are courts which will examine the boundary,” Mehta added.
Attorney General R Venkataramani, appearing for the Union, too agreed that such summonses were “certainly wrong” and said internal steps had already been taken to prevent a recurrence. “I have spoken to them and said they are wrong,” he told the court.
Senior advocate and SCBA president Vikas Singh emphasized that calling lawyers for their legal opinions would have a “chilling effect” on the entire system. Senior advocate Mukul Rohatgi added, “A legal advice can be right or wrong, but that cannot be the basis for such coercive action.”
On his part, SCAORA president Vipin Nair told the court on Monday: “We are grateful that the court has taken cognizance of our request and commenced these proceedings in the interest of the legal community.”
Responding to broader concerns raised during the hearing, the CJI observed: “My experience from small courts to this bench is that unfortunately on the very first day, in two matters, I said do not politicise court proceedings.” The bench also commented on the increasing number of appeals being filed by the ED against adverse high court orders: “We have also been observing that ED files appeals just for the heck of it.”
When SG Mehta referred to narratives being built on social media and in interviews, the bench countered: “We do not read newspapers or watch YouTube. How does anything affect us when we do not even take notice of them? Have you seen any judgment or order affected by a narrative?”
The court directed that a set of preliminary issues framed earlier by a separate bench led by Justice K V Viswanathan be circulated among the parties for written submissions. The matter will be heard next on July 29.
The Supreme Court had earlier this month registered a suo motu case titled “In re: Summoning advocates who give legal opinion or represent parties during investigation of cases and related issues”, following strong observations by a bench led by Justice Viswanathan the previous month. That bench lagged the emerging pattern of investigating agencies summoning lawyers for their professional role during investigations.
“This is not just about one lawyer. It is about protecting the spine of the legal system,” Justice Viswanathan said, adding that unchecked summonses could irreparably damage the justice system and the independence of legal professionals.
That bench stayed a Gujarat High Court order that had allowed police action against a lawyer who helped his client secure bail in a loan dispute. It also framed key questions -- whether legal advice alone can justify a summons, and whether judicial oversight must be mandatory where the alleged role goes beyond advice.
The top court’s concern follows recent episodes involving the Enforcement Directorate (ED), which in June summoned senior advocates Arvind Datar and Pratap Venugopal for legal opinions they gave in a case relating to allotment of ESOPs by Care Health Insurance to former Religare chairperson Rashmi Saluja.
Following an uproar within the legal community and strong representations by the Supreme Court Bar Association and Supreme Court Advocates-on-Record Association (SCAORA), ED withdrew both summonses.
The agency subsequently issued a clarification on June 20 stating that Venugopal was summoned not as counsel but as an independent director of the company. On the same day, ED also issued a circular to all its field offices directing them not to summon lawyers in violation of Section 132 of the Bharatiya Sakshya Adhiniyam, 2023, which protects privileged legal communication. The circular further stipulated that in rare instances where the proviso to Section 132 may be invoked, prior approval from the ED Director would be mandatory.
