INTRODUCTION:
The recent ED summons issued to senior counsel Arvind Datar and Pratap Venugopal has ignited a heated discussion regarding the sanctity of lawyer-client confidentiality in India. The summons pertained to a legal opinion concerning the ESOPs of Care Health Insurance Ltd, which deals with some alleged financial irregularities. The Supreme Court (SC) took notice of certain actions and expressed concern.[1], stating, “The ED is crossing all boundaries. Even if the legal opinion is incorrect, it remains privileged communication.” This response emphasizes that privileged communication takes precedence over the independence of the legal profession and the integrity of a fair criminal justice system.
LEGAL FOUNDATION OF ATTORNEY-CLIENT PRIVILEGE:
Section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) currently codifies advocate-client privilege in India. It prevents advocates from disclosing any conversations they had while working as professionals unless the client gives their express permission. The clause covers confidentially communicated documents and advice.[2]. Advocates are the only group of people who are allowed to practice law, according to Section 29 of the Advocates Act of 1961. [3]Confidentiality commitments made by legal professionals are also safeguarded by ancillary provisions under the Bar Council of India Rules.[4]
- Scope and Exceptions: In BSA, privilege is available in full but with two limited exceptions: (1) communication made in the quest for an unlawful purpose, and (2) information obtained disclosing the commission of a crime since admission as an advocate. Exceptions are construed narrowly and do not override privilege unless established.[5]
- The ED Summons Controversy: Leading lawyers were consulted for guidance offered to corporate executives and board members under investigation for the sale of ESOPs at less than their worth. The ED thought their guidance amounted to facilitating the suspected illegal activity. Lawyers and leading bar associations responded in protest to this abuse, asserting that this infringes upon the right to counsel.[6]
- Supreme Court Involvement: In the case of In Re: Summoning Advocates, the court, headed by the Chief Justice, condemned this as an attack on the justice delivery system and cautioned, “How can notices be issued when the entire communication is protected?” SC also made the same reference to the same issues raised in Ashwinkumar Govindbhai Prajapati v. State of Gujarat, where police summoned a defence counsel to court for appearing at a bail hearing. The bench labeled this as a direct threat to the independence of the administration of justice.[7]
JUDICIAL PRECEDENTS REGARDING PRIVILEGE:
- VC Rangadurai v. D Gopalan: Misconduct consists of attorneys breaching their sacred fiduciary responsibilities to their clients.[8]
- Veerasekaran v. State of Tamil Nadu: The communication between the accused and counsel was held exempt from being tendered as evidence.[9]
- Anil Vishnu Anturkar v Chandrakumar Baldota: The Bombay HC reaffirmed that even towards the close of legal practice, confidentiality is a lawyer’s duty.[10]
These findings emphasize that privilege is inherent and cannot be watered down just because the opinion is negative or later attached to a purported crime.
ED’S EXPANDING FUNCTIONS:
The Enforcement Directorate (ED) has a range of functions under the Prevention of Money Laundering Act (PMLA) of 2002 and the Foreign Exchange Management Act (FEMA). Such functions include the power to seize property, undertake searches, and issue summonses as outlined in Section 50 of the PMLA.[11]. In 2020, internal documents from the ED noted changes in investigation strategies. These documents justified the relaxation of procedural safeguards in favor of broader concepts such as “greater public interest.”[12]
- Chilling Effect on Justice: The SC and bar groups warned that the calling of lawyers for professional opinion has the chilling effect of discouraging candid legal advice. Confidentiality is inherent in legal advice, according to McClure v. Canada[13]. Without such protection, lawyers may turn into investigatory witnesses and subvert adversarial justice. Vikas Singh, President of SC Bar Association, said, “Lawyers will no longer be able to advise freely”.[14]
- Comparative Global Perspective: Globally, privilege is statutorily and constitutionally guaranteed, particularly in jurisdictions of the common law. In the United States, the Supreme Court struggled with “dual-purpose communications.”[15] In re Grand Jury (2023), between investigative interests and the attorney-client privilege. The EU Courts have repeatedly held that state surveillance or interrogation of lawyers risks violating Article 6 of the European Convention on Human Rights.[16] On the other hand, in certain countries like Turkey and China, political interference and silencing of opposition have been associated with the erosion of legal privilege.
- Technological & Digital Challenges: Post-COVID, interactions online are the order of the day, and with that go privacy issues. In Akhil Hasija v. BCI, the Delhi High Court issued guidelines to preserve privilege for online meetings[17]. Without encryption and safe protocols, confidential communications are susceptible to investigative incursion or cyberattacks.
- New Judicial Protections: To clear the furore, the ED issued a circular instructing that summonses shall not be served to advocates without Director-level approval[18]. Moreover, summonses should only be served exceptionally to ensure that BSA Section 132 is complied with.
The Supreme Court also established two fundamental questions for future reference:
- Can the investigative agencies summon lawyers who are not accused of a crime but have advised a party?
- If a lawyer’s role is suspected of something other than legal advice, do we require judicial control before interrogation? [19]
RECOMMENDATIONS & CONCLUSION:
This is an opportunity to set up permanent protective measures. A few recommendations are
- Judicial Oversight Mandate: Those summoning the lawyers should require approval from a judge, which guarantees fairness.
- Legislative Clarity: Amend the BSA to expressly limit the scope of investigation regarding legal communication.
- Training Investigators: Police officers must be trained in privilege and legal ethics.
- Cybersecurity Measures: Courts and bar councils should make the use of safe platforms for virtual hearings compulsory.
The legal profession is an integral part of the justice system. If state institutions ignore the confidentiality to which it is committed, both client rights and the rule of law are eroded. As pointed out in Ashwinkumar, the Supreme Court makes it clear that destabilizing the lawyer-client privilege is no different from compromising the structure of justice. While the zeal to contain white-collar crime is necessary, it must operate under the Constitution. The proactive stance taken by the Supreme Court allows for some reconstruction of the legal profession, which is a cornerstone of democracy.
Author(s) Name: Kaustav Das (Sister Nivedita University (SNU))
References:
[1] In Re: Summoning Advocates [2024] SCC OnLine SC 172.
[2] Bharatiya Sakshya Adhiniyam 2023, s 132.
[3] Advocates Act 1961, s 29.
[4] Bar Council of India Rules, Part VI, Chapter II.
[5] ibid
[6] Krishnadas Rajagopal, ‘ED Summons to Lawyers Draw Supreme Court’s Ire’ The Hindu (New Delhi, 13 July 2024)
[7] Ashwinkumar Govindbhai Prajapati v State of Gujarat [2020] SCO OnLine Guj 511.
[8] VC Rangadurai v D Gopalan (1979) 1 SCC 308.
[9] D Veerasekaran v State of Tamil Nadu [2004] SCC OnLine Mad 1034.
[10] Anil Vishnu Anturkar Chandrakumar Baldota [2022] SCC OnLine Bom 1227.
[11] Prevention of Money Laundering Act 2002, s 50.
[12] Shruti Menon, ‘How the ED Changed Its Strategy on White-Collar Crime’ Scroll.in (2021)
[13] McClure v Canada (Attorney General) 2001 SCC 14, [2001] 1 SCR 445.
[14] Vikas Singh, quoted in Krishnadas Rajagopal, ‘ED Summons to Lawyers Draw Supreme Court’s Ire’ The Hindu (New Delhi, 13 July 2024).
[15] In re Grand Jury 598 US (2023).
[16] European Convention on Human Rights, art 6.
[17] Akhil Hasija v Bar Council of India [2021] SCC OnLine Del 4533.
[18] ED Tells Officials to Avoid Summoning Lawyers without Top-Level Approval’ Indian Express (New Delhi, 15 July 2024).
[19] In Re: Summoning Advocates [2024] SCC OnLine SC 172.
