Lawyers Cannot Be Summoned By Probe Agencies For Their Legal Advice To Clients: SC Judgment
SC guidelines on summoning lawyers
Judges: CJI B. R. Gavai, Justice K. Vinod Chandran, and Justice N. V. Anjaria.
LawPGLU | 31 Oct 2025
The bench focused on balancing the needs of investigation with the protection afforded to clients under Section 132 of the Bharatiya Sakshya Adhiniyam (BSA), 2023 (which deals with professional communications).
1. Restrictions on Summoning Advocates
No Blanket Power to Summon: Investigating Officers (IOs) in criminal cases, including those of agencies like the ED, shall not issue a summons to an advocate representing the accused merely to know the details of the case.
The Privilege Rule: Section 132 of the BSA confers a privilege on the client, obliging the advocate not to disclose any professional communications made in confidence. This privilege can be invoked by the advocate on the client’s behalf.
Exceptions Only: An advocate can be summoned only if the matter falls under the exceptions laid out in Section 132 of the BSA, which are:
Any communication made in furtherance of any illegal purpose.
Any fact observed by the advocate showing that a crime or fraud has been committed since the commencement of their service.
Mandatory Prior Approval: Any summons issued under these exceptions must be approved by a superior officer not below the rank of a Superintendent of Police (SP), who must record their satisfaction in writing.
Explicit Wording: The summons must explicitly specify the facts on which the exception to privilege is being relied upon.
Judicial Review: Any such summons will be subject to judicial review under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) at the instance of the advocate or the client.
2. Production of Documents and Digital Devices
The Court laid down strict safeguards for documents and, especially, digital devices held by the advocate to protect the confidentiality of other clients.
Item to be Produced | Procedure | Key Safeguard |
Documents (Client’s documents in lawyer’s possession) | Production must be made before the Jurisdictional Court (under BNSS Section 94) and not directly to the IO. | The Court must hear the advocate and client on any objection before ruling on admissibility. |
Digital Devices (Phone, Laptop, etc., containing client info) | The IO can only direct the advocate to produce the device before the Jurisdictional Court. | Cannot be opened until the Court issues notice to the concerned client, hears objections, and then only opened in the presence of the party, the advocate, and a technical expert of their choice. |
3. Exclusion of In-House Counsel
In-house counsel (salaried employees of a company) are not entitled to the privilege under Section 132, as they are not “advocates practicing in courts” as defined in the BSA.
However, communications made to an in-house legal advisor remain protected under a different provision (Section 134 of the BSA).
The judgment essentially reinforces the principle that lawyers cannot be treated as witnesses against their clients merely because they provided legal advice or represented them in a case.
LawPGLU