The legal fraternity in India is up in arms, with prominent lawyers' bodies, including the Supreme Court Bar Association (SCBA) and the Supreme Court Advocates-on-Record Association (SCAORA), vehemently condemning what they perceive as the Enforcement Directorate's (ED) overreach and disregard for the independence of the Bar. This outcry stems from the ED's recent actions of summoning senior advocates in connection with cases where they had merely provided legal advice to their clients.
The controversy initially erupted after the ED summoned Senior Advocates Arvind Datar and Pratap Venugopal, seeking their presence and information related to legal opinions they had rendered. These summonses, issued under Section 50 of the Prevention of Money Laundering Act (PMLA), triggered immediate and widespread concern within the legal community. The core issue at stake is the sacrosanct principle of attorney-client privilege, which ensures that communications between lawyers and their clients remain confidential and protected.
The SCBA, led by Senior Advocate Vikas Singh, was among the first to voice its strong disapproval. In a statement, the association emphasized that "every person has a right for a legal representation and thus, advocates cannot be targeted for rendering his assistance and giving legal opinion." The SCBA further invoked Section 132 of the Bharatiya Sakshya Adhiniyam (BSA), 2023, which safeguards advocates through professional privilege, preventing them from being summoned solely for providing legal advice.
SCAORA echoed these sentiments, with President Vipin Nair expressing "deep anguish" over the ED's actions. In a letter to the Chief Justice of India, Nair urged the Supreme Court to take suo motu cognizance of the matter, emphasizing the "deeply disquieting development" that poses a grave threat to lawyer-client confidentiality and the independence of the legal profession. SCAORA also stressed that ED's actions could have a "chilling effect" on the legal community, potentially dissuading lawyers from offering honest and independent legal opinions.
The Bar Association of India (BAI) also joined the chorus of condemnation, asserting that the ED's summonses constituted an "egregious example of overreach" and an attempt to undermine attorney-client privilege. The BAI called upon the ED to exercise restraint and respect the independence of the Bar.
In response to the widespread criticism, the ED has since withdrawn the summonses issued to Senior Advocate Arvind Datar and clarified that the summons for Venugopal has also been withdrawn. Furthermore, the agency has reportedly instructed its field formations to refrain from issuing summonses to advocates in violation of Section 132 of the Bharatiya Sakshya Adhiniyam, 2023, requiring prior approval from the Director of ED for any exceptions.
Despite the ED's apparent retreat, the legal community remains vigilant, with calls for the Supreme Court to intervene and lay down clear guidelines to protect the independence of the Bar and prevent any misuse of executive power. The concern is that without such safeguards, the ED's actions could set a dangerous precedent, undermining the foundations of the legal profession and eroding the public's trust in the justice system.
This controversy highlights the delicate balance between the investigative powers of law enforcement agencies and the fundamental rights and protections afforded to legal professionals. The independence of the Bar is crucial for upholding the rule of law and ensuring that all citizens have access to competent and fearless legal representation. Any action that threatens this independence must be met with strong resistance from the legal community and a firm commitment to safeguarding the principles of justice and fairness.
