New Delhi, July 21 The Supreme Court on Monday mulled formation of guidelines for probe agencies on issuing summons to legal professionals for providing legal opinions to clients or for representing them before judicial forums.
A Bench of Chief Justice of India (CJI) B.R. Gavai and Justice K. Vinod Chandran was hearing the suo moto case, initiated on its own motion, titled “In Re: Summoning Advocates Who Give Legal Opinion Or Represent Parties During Investigation Of Cases And Related Issues”.
During the hearing, the CJI Gavai-led Bench expressed shock over the summoning of advocates, noting that communications with their clients is privileged and protected from disclosure. “How can lawyers be summoned like this? This is privileged communication," remarked the apex court.
Attorney General of India R. Venkataramani, the highest law officer of the Centre, submitted that after summons were issued to senior advocate Arvind Datar, he immediately told the Enforcement Directorate (ED) officials that it was wrong. Solicitor General (SG) Tushar Mehta also weighed in that lawyers cannot be summoned for professional advice.
SG Mehta quoted an incident from Gujarat in which a lawyer allegedly guided a murder accused on how to destroy evidence. At this, the apex court remarked that a judgment already covered such exceptional cases.
The CJI Gavai-led Bench eventually listed the matter for further hearing on July 29 for framing guidelines and said that it will appoint amicus curie on the next date of listing.
In the meantime, it asked the parties assisting the court to file a comprehensive note.
Previously, a 2-judge Bench of Justices K.V. Viswanathan and N.K. Singh concurred with the contention that permitting the investigating agencies to summon advocates who are engaged in a case or who have advised parties not only impinged upon the rights of the advocates but also seriously threatened the autonomy of the legal profession.
The Justice Viswanathan-led Bench was dealing with a plea of an advocate challenging the summons issued to him by the Gujarat Police, though he was neither an accused nor a material witness to the facts of the FIR or the agreement in dispute.
Granting interim relief to the petitioner-advocate, the apex court had ordered that no coercive action would be taken against him in furtherance of the summons issued by the Assistant Police Commissioner. It also framed two questions for a detailed consideration and directed that the matter be placed for further directions before the Chief Justice of India (CJI).
First, when an individual has an association with a case only as a lawyer advising the party, could the prosecuting agency directly summon the lawyer for questioning? And second, assuming that the police have a case that the role of the individual is not merely as a lawyer but something more, even then, should they be directly permitted to summon or should judicial oversight be prescribed for those exceptional criterion of cases. Stressing that the issue required redressal on a comprehensive basis, it had called for the assistance of the Attorney General of India, the Solicitor General, the Bar Council of India, Supreme Court Bar Association (SCBA) and Supreme Court Advocate-on-Record Association in the matter.
After the ED issued summons to senior advocates Arvind Datar and Pratap Venugopal, the SCAORA (Supreme Court Advocates-on-Record Association) had urged the Supreme Court to take suo motu cognisance of the matter and examine the legality and propriety of such summons issued to legal professionals for opinions rendered in good faith.
In a letter, SCAORA President Vipin Nair requested the apex court to safeguard the constitutional and professional protections afforded to advocates and lay down appropriate guidelines to prevent any further erosion of the lawyer-client privilege.
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