Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(SC) 1877

SUPREME COURT OF INDIA
B. R. GAVAI, C.J.I., K. VINOD CHANDRAN, N.V. ANJARIAM, JJ.
IN RE: Summoning Advocates who give legal opinion or represent parties during investigation of cases and related issues.
Suo Motu Writ Petition (Criminal) No.2 of 2025 with Writ Petition (Civil) No. 632 of 2025 and Special Leave Petition (Criminal) No. 9334 of 2025
Decided on : 31-10-2025

Advocates appeared:
For the Petitioner(s): Mr. Nishant R. Katneshwarkar, Adv. Ms. Ganu Suvarna Siddhanath, AOR Mr. Siddhant Sharma, AOR Mr. Siddharth H Dave, Adv. Mr. Maulik Soni, Adv. Mr. Prafull Bhardwaj, Adv.
For the Respondent(s)/ Applicant(s): Mr. Tushar Mehta,Solicitor General Ms. Swati Ghildiyal, AOR Ms. Abhipsa Mohanty, Adv. Mr. S Prabakaran, Sr. Adv. Mr. Manan Kumar Mishra, Sr. Adv. Mrs. Usha Prabakaran, Adv. Mr. Apurba Kumar Sharma, Sr. Adv. Mr. Maheswaran Prabakaran, Adv. Ms. Anjul Dwivedi, Adv. Mr. M Naveen, Adv. Dr. Ram Sankar, Adv. Mr. Jawahar P, Adv. Mrs. Harini Ram Sankar, Adv. Mr. Ajith Williams, Adv. Ms. Adhirai Devi, Adv. Mr. Adhil, Adv. For M/s. Ram Sankar & Co. Mr. Sidharth Luthra,Sr.Adv. Mr. Kumar Vaibhaw,Adv. Mr. Mohd. Ashaab,Adv. Ms. Madhusruthi Neelakantan,Adv. Mr. Mukul Rohatgi, Sr. Adv. Mr. Ranjit Kumar, Sr. Adv. Mr. Mahesh Agarwal, Adv. Mr. Anshuman Srivastava, Adv. Mr. Himanshu Saraswat, Adv. Mr. Chirag Nayak, Adv. Mr. E. C. Agrawala, AOR Mr. M Shoeb Alam, Sr. Adv. Mr. Talha Abdul Rahman, AOR Mr. M Shaz Khan, Adv. Mr. Sudhanshu Tewari, Adv. Mr. Dev Sareen, Adv. Mr. Faizan Ahmed, Adv. Mr. Rafid Akhter, Adv. Mr. Deepak Khosla, Adv. Mr. Pranav Sachdeva, AOR Mr. Abhay Nair, Adv. Mr. P Rohit Ram, Adv. Mr. Sanyam Jain, Adv. Mr. S Prabakaran, Sr. Adv. Mr. Manan Kumar Mishra, Sr. Adv. Mrs. Usha Prabakaran, Adv. Mr. Apurba Kumar Sharma, Sr. Adv. Mr. Maheswaran Prabakaran, Adv. Ms. Anjul Dwivedi, Adv. Mr. M Naveen, Adv. Dr. Ram Sankar, Adv. Mr. Jawahar P, Adv. Mrs. Harini Ram Sankar, Adv. Mr. Ajith Williams, Adv. Ms. Adhirai Devi, Adv. Mr. Adhil, Adv. For M/s. Ram Sankar & Co. Mr. Amit Desai, Sr. Adv. Mr. Shantanu Phanse, Adv. Mr. Prashant Relekar, Adv. Mr. Prastut Mahesh Dalvi, AOR Ms. Vidhi Pankaj Thaker, Adv. Ms. Preet Phanse, Adv. Mr. Suresh Sabrat, Adv. Mr. Gopal Shenoy, Adv. Mr. Kaustubh Shukla, AOR Mr. Vikas Singh, Sr. Adv. Mr. Rahul Kaushk, Sr. Adv. Mrs. Aparna Bhat, Sr. Adv. Mr. Anand Sanjay M. Nuli, Sr. Adv. Mr. Dinesh Kr Goswami, Sr. Adv. Dr. Anindita Pujari, Sr. Adv. Mr. Ashok Panigrahi, Sr. Adv. Ms. Monika Gusain, Sr. Adv. Mrs. Pragya Baghel, AOR Mr. Meenesh Kumar Dubey, Adv. Mr. Vikrant Yadav, Adv. Mr. Susheel Kumar Tomar, Adv. Mr. Kumar Gaurav, Adv. Mr. Mukesh Kumar Singh, Adv. Mr. Manish Mohan, Adv. Mr. Ashish Kumar Sinha, Adv. Mr. Upendra Mishra, Adv. Mr. Rohit Vats, Adv. Mrs. Samta Pushkarna Mishra, Adv. Mrs. Smriti Kumari, Adv. Ms. Rachna Gandhi, Adv. Ms. Shrika Gautam, Adv. Mr. Vivek Sharma, AOR Dr. Vijay Kumar Sharma, Adv. Mr. Varun K Chopra, Adv. Mr. Dipu Kumar Jha, Adv. For M/S. VKC Law Offices Mr. Vijay Hansaria, Sr. Adv. Mr. Tarun Rana, Adv. Ms. Kavya Jhawar, Adv. Ms. Nandini Rai, Adv. Mr. Pushkar Karni Sinha, AOR Mr. Atmaram N.S. Nadkarni,Sr.Adv. Mr. Vipin Nair,Adv. Mr. Amit Sharma,Adv. Mr. Nikhil Jain,Adv. Mr. Kaustubh Shukla,AOR Mr. Aljo K. Joseph,Adv. Mr. Vishal Prasad,Adv. Ms. Reena Pandey,Adv. Dr. Meenakshi Kalra,Adv. Ms. Pragbya Parijat Singh,Adv. Ms. Astha Sharma,Adv. Mr. Aditya Giri,Adv. Mr. A. Selvin Raja,Adv. Mr. Nipun Saxena,Adv. Mr. Salvador Santosh Rebello,Adv. Mr. Shreyas Awastrhi,Adv. Ms. Pratibha Yadav,Adv. Ms. Aadya Pandey,Adv. Ms. Monal Prasad,Adv. Ms. Deepali Dabas,Adv. Mr. Praveen Kr. Singh,Adv. Mr. Amit Desai,Sr.Adv. Mr. Mahesh Agarwal,Adv. Mr. Gopalakrishna Shenoy,Adv. Mr. Ritesh Desai,Adv. Mr. Anshuman Srivastava,Adv. Mr. Himanshu Saraswat,Adv. Mr. Chirag Nayak,Adv. Mr. E.C. Agrawala,Adv.

IMPORTANT POINTS
(1) Summoning of Lawyer by Investigating Agency/ Prosecuting Agency/Police – Investigating agency/prosecuting agency/ police cannot directly summon a Lawyer appearing in a case to elicit details of the case.
(2) Provisions of Section 528 of BNSS provides sufficient safeguards to Advocates against whom a summons is issued under BNSS.
(3) No Advocate can be summoned for reason only of giving a legal opinion or appearing for a party in a case – But immunity with respect to professional communications would not absolve liability in the event of an Advocate participating in a crime which is beyond his professional duty.

Headnote:
(A) Indian Evidence Act, 1872 – Section 126 [Section 132 of BSA] – Summoning of Lawyer by Investigating Agency/ Prosecuting Agency/Police – No Advocate can be summoned for reason only of giving a legal opinion or appearing for a party in a case – But immunity with respect to professional communications would not absolve liability in the event of an Advocate participating in a crime which is beyond his professional duty – 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 constitute a cognizable offence as distinguished from legitimate professional conduct – An Advocate cannot be coerced into revealing any information with respect to client he represents or cause he is engaged to prosecute or defend, which would be in violation of Section 132 – Complicity to crime even if admitted by accused to his Lawyer, it does not fall within genre of an ‘extra-judicial confession’. (Paras 13, 14 and 33)
(B) Bharatiya Sakshya Adhiniyam, 2023 – Section 132 – Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 528 – Constitution of India – Article 20(3) – Summoning of Lawyer by Investigating Agency/ Prosecuting Agency/Police – Privilege as embodied in Section 132 of BSA and exceptions thereon extends even to an Advocate-Client communication which does not necessarily arise from engagement in a suit or prosecution – Obligation of non-disclosure would not fetter Advocate from disclosing any communication made in furtherance of any illegal purpose or any fact coming to notice of Advocate, in course of his engagement, revealing a crime or fraud committed by his client after commencement of engagement – Ignorance or absence of domain knowledge does not squarely apply in a case where I.O summons a Lawyer, powers of which are clearly fettered by provisions of Section 132 – Though distinct, it would also be an extension of client’s constitutional right against self-incrimination as found in Article 20(3) of Constitution of India – When a person cannot incriminate himself, he cannot be prejudiced or incriminated by statement of his Counsel, only on the basis of professional communications he had with his counsel, in confidence – Police officer issuing summons to an Advocate, under Section 179, would be cautioned by provisions of Section 132 in not expecting any disclosure of a privileged communication – Facts and circumstances of a crime committed, or an FIR registered, is not to be elicited from Advocate who represents accused – It is for investigator to obtain independent evidence of culpability of accused – Position of trust Advocate occupies vis-à-vis his client cannot be put to test by attempt to breach professional confidence, conferred with solemn privilege under Section 132; which has reflections of constitutional protection against self-incrimination – Whether summons issued falls under any of exceptions as provided under Section 132 has to be explicitly stated if a summons is issued to Advocate on any of exceptions; which is not an empty formality and when supported by reasons, amenable to judicial review – Provisions of Section 528 of BNSS provides sufficient safeguards to Advocates against whom a summons is issued under BNSS. (Paras 34, 40, 41, 44, 46 and 47)
(C) Bharatiya Sakshya Adhiniyam, 2023 – Section 132 – Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 528 – Summoning of Lawyer by Investigating Agency/ Prosecuting Agency/Police – Investigating agency/prosecuting agency/ police cannot directly summon a Lawyer appearing in a case to elicit details of the case, unless there is something, I.O has knowledge of, which falls under exceptions, in which case it has to be specifically mentioned in summons, which Lawyer summoned can challenge under Section 528 of BNSS – Any such summons issued as against a Lawyer by an I.O has to be with approval and satisfaction of hierarchical Superior, not below rank of a Superintendent of Police which satisfaction has to be recorded in writing and should mention facts leading to exception under Section 132, for which summons is issued – 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 said document which shall be perused, for the purpose of deciding on objections raised against direction to produce and determine its admissibility, after hearing witness who produces it and any objection raised by client under Section 132 of BSA, which decision shall be by Court and not by officer – In examining any digital equipment so produced, Court shall ensure presence of Lawyer and his client as also any person, Lawyer or client desires to accompany them, who is conversant in digital technology – Impugned summons set aside. (Paras 49, 50, 58 and 68)
Facts of the case:
Questions that arise in the reference order are as follows: -
(i) When an individual has 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 Investigating Agency/ Prosecuting Agency/Police has a case that 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?
Findings of Court:
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.
Result : Directions issued.

Judgement Key Points

Based on the provided legal document, the following key points can be summarized:

Prohibition on Direct Summoning of Lawyers: Investigating agencies, prosecuting authorities, and police are not permitted to directly summon a lawyer solely for the purpose of eliciting details of a case, especially in the absence of specific exceptions (!) (!) .
Safeguards for Advocates: The provisions under relevant statutes, such as Section 528 of the BNSS, provide sufficient safeguards for advocates against unwarranted summons, ensuring protection of their professional communications (!) .
Limits on Summoning Advocates: An advocate cannot be summoned merely for giving legal opinions or representing a client in a case. Summoning in such circumstances would violate the privilege of professional communication, which is protected under law and constitutional rights (!) (!) .
Exceptions to Privilege: The privilege of non-disclosure can be waived if the communication was made in furtherance of illegal purposes or if the advocate becomes aware of a crime or fraud committed by the client after the commencement of their engagement. Such disclosures are exceptions to the privileged communication (!) (!) .
Legal and Constitutional Protections: The privilege extends to communications made in various contexts, including sporadic legal advice, legal opinions, and retainers, and is rooted in constitutional protections against self-incrimination and right to legal representation. Privileged communications cannot be disclosed without the client’s express consent, except under specific exceptions (!) (!) .
Professional Independence and Confidentiality: In-house counsel or legal advisors employed by corporations do not generally fall within the scope of advocate privileges under the law, especially when their role is primarily as employees rather than practicing advocates. Their communications may not be protected unless they meet criteria for independence and professional practice (!) (!) .
Procedure for Summoning Advocates: When a summons is issued under exceptions, it must be explicitly justified, recorded in writing, and approved by a hierarchical superior, such as a senior officer, with reasons supporting the exception. The summons should also specify the facts relied upon and be subject to judicial review (!) (!) (!) .
Judicial Oversight: There is a clear requirement for judicial oversight when summoning advocates, ensuring that their professional privilege is not unnecessarily infringed. Any summons issued must be scrutinized by courts to prevent abuse and protect the rights of the advocate and client (!) (!) .
Production of Documents and Digital Devices: Documents and digital devices in the possession of an advocate can only be produced before the court for examination, with safeguards to protect the confidentiality of other clients. The court must ensure the presence of the advocate and the client, and any discovery must be limited to what is permissible and relevant (!) (!) (!) .
In-House Counsel Limitations: In-house legal advisors or counsel employed by a corporate entity do not generally qualify for the privilege under Section 132 of the BSA, given their employment status and role. They may, however, be protected under other provisions, such as Section 134, for communications made in their capacity as legal advisors to their employer (!) (!) .
Guidelines and Restrictions: The law emphasizes that guidelines or procedures for summoning advocates should not override statutory provisions or infringe upon constitutional rights. Any overreach or abuse of power by investigating agencies can be challenged in courts, which have the authority to review such actions (!) (!) .
Fundamental Rights and Legal Representation: The rights to legal representation, including the right to consult and be defended by a lawyer, are fundamental and protected under constitutional provisions. Summoning a lawyer in a manner that infringes these rights, particularly without proper legal procedures, is unlawful (!) (!) .

In summary, the legal framework prioritizes the protection of professional communications between advocates and their clients, requires strict procedural compliance when summoning lawyers, and emphasizes judicial oversight to prevent infringement of rights and professional privileges.

JUDGMENT :

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 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 Survivors, 473 U.S. 305 (1985) 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[for short, the BNSS]. Pursuant to an agreement relating to a loan and its 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[hereafter, the ‘I.O.’], 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 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[for short, ‘the BSA’] 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 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 s