Authors:
The contours of Attorney-Client Privilege was so far not a settled topic in India, with very few disputes on the right to privilege making their way to the Supreme Court. However, in a recent landmark pronouncement[1], the Supreme Court of India has unequivocally clarified the importance of the advocate–client relationship and the need to preserve independence of the legal profession. The Hon’ble Supreme Court has held:
- Attorney-Client Privilege is Fundamental:
- Section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (‘BSA’)[2] codifies the privilege of confidential communication between a lawyer and client.
- This privilege is conferred on the client, but the advocate can invoke it on behalf of the client, even in their absence.
- Summoning Advocates is Not Permissible Without Exceptions:
- Investigating agencies cannot summon an advocate merely for representing a client or giving legal advice.
- Summons can only be issued if exceptions under Section 132 of the BSA apply, such as:
- Communication made in furtherance of an illegal purpose.
- Observation of a crime or fraud during engagement.
- Express consent or waiver by the client.
- Judicial Oversight is Available:
- Any summons issued to an advocate must be approved by a superior officer (not below Superintendent of Police) with written reasons.
- Such summons is subject to judicial review under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’).
- No Need for New Guidelines or Committees:
- The Court declined to frame new guidelines or constitute peer-review committees, stating that existing statutory provisions are sufficient.
- It emphasized that courts are the proper forum to address overreach or misuse.
- Production of Documents and Digital Devices:
- Documents in possession of advocates are not protected under Section 132 of the BSA.
- Digital devices must be produced only before the court, and examined in presence of the advocate, client, and a tech expert if needed.
- Care must be taken to protect data related to other clients.
- In-House Counsel Not Covered by Section 132 of the BSA:
- In-house legal advisors employed full-time by companies do not qualify as “advocates” under the Advocates Act, 1961.
- They are not entitled to the privilege under Section 132 of the BSA, though Section 134[3] of the BSA may offer limited protection.
A. Background
The case arose out of a notice issued to a prominent advocate under Section 179 of the BNSS, which empowers an investigating officer to summon any person for examination. The advocate had represented an accused in a criminal case registered under the BNSS, the Gujarat Money Lenders Act, 2011, and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The notice required the advocate to appear before the police and “know true details of the facts and circumstances after making your inquiry”. The advocate challenged the summons before the High Court.[4]
The High Court dismissed the advocate’s challenge, observing that his non-cooperation hindered investigations. On appeal, the Supreme Court took cognisance of the larger constitutional question — whether an advocate, by virtue of his professional role, could be compelled to divulge information obtained during legal representation. Given the issue’s implications for the independence of the legal profession, the Court registered a suo motu writ petition, addressing the concerns raised by various individual advocates as well as the Supreme Court Bar Association.[5]
B. Questions before the Court[6]
- If a person is involved in a case only in their capacity as a lawyer advising a client, can the Investigating or Prosecuting Agency, or the Police, summon the lawyer directly for questioning?
- Even if the Investigating Agency believes that the individual’s role extends beyond that of a legal adviser, should they still be allowed to summon the lawyer directly, or should such exceptional cases require prior judicial oversight?
C. Court’s Findings
The Court observed that the relationship between an advocate and client forms the foundation of the justice system. If advocates could be freely summoned to disclose information about their clients, the resulting “chilling effect” would erode the confidence necessary for effective representation.[7]
The Court emphasised that this is the reason why Section 126 in the Evidence Act, 1972 was introduced, and by Section 132, the Bharatiya Sakshya Adhiniyam, 2023 (BSA), the successor law, the said privilege was retained, prohibiting advocates from disclosing any communication made to them in the course of professional employment, unless the client consents. Exceptions apply to communications made in furtherance of illegal purposes or to facts showing commission of a crime or fraud after the advocate’s engagement.[8]
The Court emphasised:
- Reinforcing privilege: Privilege belongs to the client but can be invoked by the advocate on behalf of the client as a fiduciary duty. Advocates must refuse to disclose professional communications unless covered by a statutory exception. Court clarified that privilege extends to all professional engagements, including pre-litigation consultations, drafting of contracts, opinions, and transactional advice and not merely courtroom representation.[9]
- Restrictions on issuing summons: Investigating powers under the BNSS are not unbounded. Court held that the general power to summon under Section 179 does not override statutory privilege under Section 132 of the BSA or professional obligations under the Advocates Act, 1961. Summons cannot be issued to advocates unless the case falls under any one of the exceptions of Section 132 of BSA. Exception clauses in Section 132 are narrow and cannot be invoked for speculative inquiries. If the case falls under any of the exceptions, it should be explicitly mentioned, rather than being a mere formality.[10]
- Privilege for in-house counsels: Protection does not extend to in-house counsel who are salaried employees of corporations, as they do not qualify as “advocates” within the meaning of the Advocates Act, 1961. They may exercise their right under Section 134 of the BSA insofar as any communication made to the legal advisor of their employer. However, privilege protection cannot be claimed for the communications between them and their employer.[11]
- Privilege for document/ digital device: Privilege under Section 132 of the BSA does not extend to physical or digital evidence, though protection may be available under Sections 129 and 130 of the BSA[12]. Documents or devices may be subject to lawful seizure through judicial orders, provided that such processes safeguard unrelated client data. Reasoning is that if the documents could have been seized/ summoned from the client directly, then no bar on calling them from advocates.[13]
- Guidelines/ Operative Directions
The Court declined to create a new committee or judicial pre-clearance mechanism for summoning advocates, noting that such an institutional layer might conflict with the BNSS framework. However, to prevent abuse of investigatory powers, the Court laid down comprehensive procedural safeguards and directions:
- On summons to advocates:[14]
- Investigating officers shall not issue a summons to advocates who represent the accused to know the details of the case, unless it is covered under any of the exceptions under Section 132 of BSA.
- Investigating officers must record written reasons when they believe an advocate’s communication falls within the exceptions of Section 132 of the BSA, i.e., that the advice was given in furtherance of an illegal purpose or that the advocate observed post-engagement criminal conduct.
- Such reasons must receive prior approval from a senior officer, not below the rank of Superintendent of Police, before a summons is issued. The approval must expressly state satisfaction that the statutory conditions for the exception are met.
- Advocates served with such a summons retain the right to seek judicial review under Section 528 of the BNSS. High Courts have revisional jurisdiction to quash summons issued in excess of statutory authority.
- On production of document/ data:[15]
- Where a Court or an Officer directs production of a document, such direction shall be complied with by producing the document before the Court in accordance with Section 165 of the BSA read with Section 94 of the BNSS or Order XVI Rule 7 of the Code of Civil Procedure, 1908.
- Upon production of such a document, it shall be for the Court to adjudicate any objections raised in relation to the order of production and to determine the admissibility of the document, after hearing the Advocate and the party represented by the Advocate.
- On production of a digital device:[16]
- Where production of a digital device is directed under Section 94 of the BNSS by an Investigating Officer, the direction shall be only for production before the Jurisdictional Court.
- Upon such production by the Advocate, the Court shall issue notice to the concerned party whose information is sought to be discovered from the device and shall hear both the party and the Advocate on any objections relating to (i) the production of the device, (ii) discovery from it, and (iii) the admissibility of the material discovered.
- If such objections are overruled, the digital device shall be accessed only in the presence of the party and the Advocate, who shall be entitled to the assistance of a person with expertise in digital technology, of their choice.
- While examining the digital device, the Court shall take due care to preserve the confidentiality of information relating to the Advocate’s other clients, and the scope of discovery shall be strictly limited to the material sought by the Investigating Officer, to the extent it is found permissible and admissible.
E. BMR Legal View:
This decision reinforces that the attorney-client advocate-client privilege is constitutionally and statutorily entrenched and cannot be breached by investigating agencies lightly. The distinction between external counsel (who enjoy privilege) and in-house counsel (who do not, for Section 132 of BSA) is now codified without considering the change in language of Section 126 of the erstwhile Evidence Act and 132 of the BSA. This will have a far-reaching impact and will influence how legal advice is structured, documented and segregated within organisations, and potentially needs reconsideration.
The Courts interpretation of Section 132 not being extended to in-house legal team relied upon ECJ decision in Akzo Nobe case in contrast to common law jurisdictions recognising privilege of in-house counsels as laid down by the US and Singapore jurisdictions.
[1] In Re: Summoning Advocates who give legal opinion or represent parties during investigation of cases and related issues (2025 INSC 1275) [hereinafter referred as “Judgement”]
[2] Professional communications.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 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.”
[3] Confidential communication with legal advisers.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.”
[4] Para 2 of the Judgement.
[5] Para 5 of the Judgement.
[6] Para 3 of the Judgement.
[7] Paras 17-21 of the Judgement.
[8] Paras 13-14 of the Judgement.
[9] Paras 32-34 of the Judgement.
[10] Paras 38, 40-41 of the Judgement.
[11] Paras 59-67 of the Judgement.
[12] Evidence as to affairs of State.
129. No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
Official communications.
130. No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.
[13] Para 54 of the Judgement.
[14] Paras 49-53 and 67 of the Judgement.
[15] Paras 56-58 and 67 of the Judgement.
[16] Paras 67 of the Judgement.
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