The Supreme Court has voiced strong concerns regarding the Enforcement Directorate (ED) summoning lawyers for providing legal advice or representing clients during investigations, stating that the agency is "crossing all limits". This issue has prompted the court to consider framing guidelines to protect the independence of the legal profession and prevent any chilling effect on the practice of law.
During a suo motu hearing, Chief Justice B R Gavai emphasized that communications between a lawyer and their clients are privileged and questioned the validity of issuing notices against legal professionals. The court's concern arose from instances where senior lawyers like Arvind Datar and Pratap Venugopal were summoned by the ED.
Attorney General R Venkataramani acknowledged the concerns, stating that summoning lawyers for rendering legal opinions was wrong. He assured the court that the issue had been taken up at the highest level, and the probe agency had been instructed not to issue notices to lawyers for providing legal advice. Solicitor General Tushar Mehta echoed this sentiment, affirming that lawyers cannot be summoned for offering legal opinions. However, Mehta also pointed out attempts to malign institutions by creating false narratives.
The Supreme Court has directed all parties, including the Supreme Court Bar Association, to submit comprehensive notes on the issue. The matter is scheduled for further hearing on July 29, 2025. The court intends to appoint an amicus curiae to assist in framing the guidelines.
The court's concern stems from the potential undermining of the legal profession's autonomy if probe agencies are allowed to directly summon lawyers regarding their clients' matters. An earlier bench of Justices K.V. Viswanathan and N.K. Singh had also expressed similar concerns, emphasizing that such actions would impinge upon the rights of advocates and threaten the administration of justice.
In response to the controversy, the ED issued a circular stating that "no summons" should be issued to any advocate in violation of Section 132 of the Bharatiya Sakshya Adhiniyam, 2023. The agency also stated that any exceptions would require prior approval from the ED director. This circular was issued following protests by bar associations and the intervention of the Supreme Court.
The Supreme Court's intervention highlights the importance of protecting the lawyer-client privilege and ensuring the independence of the legal profession. The court's decision to frame guidelines aims to strike a balance between the need for effective investigation and the need to safeguard the rights and autonomy of legal professionals.
