The Supreme Court of India has taken suo motu cognizance of the concerning practice of investigative agencies summoning lawyers for questioning regarding client information or advice. This move by the apex court highlights the potential threat such actions pose to the autonomy of the legal profession and the independence of the administration of justice.
A bench comprising Justices K.V. Viswanathan and N. Kotiswar Singh expressed its initial view that this practice is "untenable." The court's observation stemmed from a case involving a lawyer who was summoned by the Gujarat police in connection with a case of his client. The court underscored that the legal profession is an integral component of the justice administration process, with legal professionals possessing rights and privileges rooted in their professional status and statutory provisions.
The Supreme Court emphasized that allowing investigative agencies or the police to directly summon defense counsel or lawyers who have advised parties in a case would severely undermine the autonomy of the legal profession. Such actions, the court noted, could directly threaten the independence of the administration of justice.
The court framed two key questions for consideration. First, it questioned whether a lawyer, solely advising a party, could be directly summoned by the police or investigative agencies. Second, it raised the issue of whether judicial monitoring should be mandatory before summoning a lawyer if their role extends beyond merely providing advice. The court has sought assistance from Attorney General R. Venkataramani, Solicitor General Tushar Mehta, Bar Council of India Chairman Manan Kumar Mishra, Supreme Court Advocates-on-Record Association president Vipin Nair, and Supreme Court Bar Association president and senior advocate Vikas Singh in addressing these critical questions. The matter has also been referred to Chief Justice of India B.R. Gavai for further directions.
This suo motu action by the Supreme Court follows a recent controversy involving the Enforcement Directorate (ED) summoning two senior Supreme Court advocates, Arvind Datar and Pratap Venugopal, concerning their professional roles as lawyers. Although the ED later withdrew the summons, the incident sparked widespread condemnation within the legal community. Bar associations, including the Supreme Court Advocates-on-Record Association, urged the Chief Justice of India to take suo motu cognizance of the matter, highlighting a "disturbing trend" that strikes at the foundations of the legal profession.
The Supreme Court Bar Association and the Delhi High Court Bar Association have also strongly condemned the practice of summoning lawyers, viewing it as a direct threat to the constitutional right to legal representation and a fair trial. The Gujarat High Court Advocates Association held an emergency meeting, calling for amendments to the Indian Evidence Act and the Bharatiya Sakshya Adhiniyam, 2023, to protect lawyer-client privilege.
In response to the controversy, the ED issued a circular directing its investigating officers not to issue summons to advocates in money laundering investigations against their clients, except with the director's prior approval.
The Supreme Court's intervention underscores the importance of safeguarding the autonomy of the legal profession and ensuring that lawyers can discharge their duties fearlessly and conscientiously. Allowing investigative agencies to directly summon lawyers could have a chilling effect on legal professionals and impair the justice delivery system, potentially undermining the very foundations of the legal system. The court has stayed the operation of summons against the Gujarat-based lawyer, offering interim relief and underscoring its commitment to protecting the integrity of the legal profession.
