The Supreme Court on Monday observed that the Enforcement Directorate is "crossing all limits" as it expressed serious concern over the agency summoning advocates for offering legal advice or representing clients during investigations.
A bench comprising Chief Justice of India BR Gavai, Justice K Vinod Chandran, and Justice NV Anjaria, while hearing the Suo Motu case observed that “The communication between a lawyer and the clients is privileged communication and how can the notices be issued against them… they (the ED) are crossing all limits."
The Supreme Court held that it will pass certain guidelines on the matter.
The hearing was initiated by the court on July 8 to hear the summoning of lawyers who offer legal opinions or represent parties during the investigation of cases.
Recently, the action of the ED in issuing summons to two senior advocates, Arvind Datar and Pratap Venugopal, in respect to the legal advice given by them had led to widespread outrage. Following the protests by the bar associations, the ED withdrew the summons issued to the lawyers and issued a circular that summons to lawyers cannot be issued without the prior permission of the ED director, Live Law reported.
At the outset, the Bench was informed that the ED has issued a circular mandating the prior permission of the director for issuing summons to advocates, the report added.
The Supreme Court Advocates on Record Association (SCAORA) President Vipin Nair had earlier written to the CJI Gavai on the "deeply disquieting development" having "serious ramifications for the independence of the legal profession and the foundational principle of lawyer-client confidentiality".
After the unfortunate incident, Venugopal, talking to TNIE, said, the ED action of summoning him was completely illegal, unconstitutional, unwarranted.
"It is sad and unfortunate. The action of issuing summons to Advocates is an alarming practice and besides being wholly contrary to the provisions of Sec 132 of the Bharatiya Sakshya Adhiniyam (BSA) 2023 seeks to intimidate Advocates from advising clients and further identifies Advocates with their clients which contrary to well established principles," Venugopal said.
SCAORA said that Venugopal is “a widely respected member of the legal fraternity,” whose professional record and sincerity led to his designation as a Senior Advocate earlier this year.
“These actions, by the ED, we believe, amount to an impermissible transgression of the sacrosanct lawyer-client privilege,” the letter continues, warning that such coercive measures could have a chilling effect on the legal community," the SCAORA said.
Requesting the Supreme Court to act decisively, the Association urged the Court to examine the legality and propriety of such summonses to legal professionals. "Safeguard the constitutional and professional protections afforded to advocates. Lay down guidelines to prevent further erosion of lawyer-client privilege," it said.
The SCAORA further opined that the role of an advocate, in offering legal advice, is both privileged and protected. Interference by investigative agencies strikes at the heart of the rule of law.
The letter added for an appeal to the SC to uphold the independence of the Bar and prevent any misuse of executive power that could undermine the dignity of the legal profession.
Similarly, Datar was also summoned by the ED for giving legal advice to his client in a case in which investigation was going on.